- 
the Supreme Court of the United States 
In 

CENTRAL GREEN CO., PETITIONER 

v. 

UNITED STATES OF AMERICA 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE UNITED STATES 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

DAVID W. OGDEN 

Assistant Attorney General 

BARBARA D. UNDERWOOD 

Deputy Solicitor General 

DAVID C. FREDERICK 

Assistant to the Solicitor 

General 

ROBERT S. GREENSPAN 
IRENE M. SOLET 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

No. 99-859 

QUESTION PRESENTED 

Whether 33 U.S.C. 702c, which provides that “[n]o liability 
of any kind shall attach to or rest upon the United States for 
any damage from or by floods or flood waters at any place,” 
bars petitioner’s tort action arising from property damage 
sustained as a result of allegedly negligent construction and 
maintenance of an irrigation canal that is part of a multi- 
purpose federal flood control project. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Statute involved ............................................................................. 

1 

Statement ........................................................................................ 1 

Summary of argument .................................................................. 
13 

Argument: 

I. United States v. James establishes that the 

immunity provided by the Flood Control Act 
must be broadly construed to include all dam- 
ages caused by flood waters in a flood control 

project ............................................................................. 15 

A. The James test confers immunity from 
liability for damage from waters carried 

in flood control projects that either are 
related to flood control or cannot be con- 
trolled in the project ........................................... 
15 

B. The court of appeals properly upheld the 
goverment’s immunity under James ............... 
18 

II. Congress unambiguously established the Friant 

Division of the Central Valley Project as a 
flood control project ..................................................... 
19 

A. The entire Central Valley Project is a 

federal flood control project .............................. 

19 

B. Congress specified that the Friant Divi- 
sion of the CVP is a flood control project ....... 
22 

C. The Corps of Engineers’ longstanding 
and consistent determination that the 
Friant Division is a flood control project 

is entitled to deference ....................................... 

27 

D. Petitioner’s reliance on Gerlach is mis- 
placed ..................................................................... 30 

(III) 

IV 

Table of Contents—Continued: 

Page 

III. The Madera Canal carries waters related to 
flood control within the meaning of James .............. 
32 

A. Waters released into Madera Canal can- 
not be segregated into “Flood” and “Irriga- 
tion” waters .......................................................... 
33 

B. The Madera Irrigation District contract 
expressly provides for flood water to be 
released into Madera Canal ............................... 
35 

C. The Madera Canal receives water intended 
solely for flood control purposes ....................... 
37 

IV. Petitioner’s proposal to limit Section 702c to 

damages caused by projects with a primary 
purpose of flood control is flawed .............................. 

40 
A. The “primary purpose” test conflicts 

with the text of Section 702c as construed 
in James ................................................................ 

41 
B. Petitioner’s “primary purpose” test finds 

no support in court of appeals’ decisions ......... 

44 

C. The “primary purpose” test would deny 
the government flood immunity in cases 

involving multiple-use projects ......................... 

46 

Conclusion ....................................................................................... 50 

Appendix ......................................................................................... 1a 

TABLE OF AUTHORITIES 

Cases: 

Aetna Ins. Co. v. United States, 628 F.2d 1201 
(9th Cir. 1980), cert. denied, 450 U.S. 1025 
(1981) .............................................................................. 
30, 44, 47 

Boudreau v. United States, 53 F.3d 81 (5th Cir. 
1995), cert. denied, 516 U.S. 1071 (1996) ........................... 
46 

Bowen v. Johnston, 306 U.S. 19 (1939) ............................... 33 

V 

Cases—Continued: Page 

Boyd v. United States, 881 F.2d 895 (10th Cir. 
1989) ......................................................................................... 45 

Callaway v. United States, 568 F.2d 684 (10th Cir. 
1978) ..................................................................................... 

44, 47 

Cantrell v. United States, 89 F.3d 268 (6th Cir. 
1996) ......................................................................................... 45 

Chevron U.S.A. Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837 (1984) .................................... 
29-30 

Christensen v. Harris County, 120 S. Ct. 1655 
(2000) ........................................................................................ 30 

Conley v. Gibson, 355 U.S. 41 (1957) .................................. 

32 

Dawson v. United States, 894 F.2d 70 (3d Cir. 
1990) ......................................................................................... 46 

Dewitt Bank & Trust Co. v. United States, 878 

F.2d 246 (8th Cir. 1989), cert. denied, 494 U.S. 1016 
(1990) ........................................................................................ 44 

Fisher v. United States Army Corps of Engineers, 
31 F.3d 683 (8th Cir. 1994) ................................................... 

46 

Florida E. Coast Ry. v. United States, 519 F.2d 
1184 (5th Cir. 1975) ................................................................ 
44 

Fryman v. United States, 901 F.2d 79 (7th Cir.), 
cert. denied, 498 U.S. 920 (1990) ......................................... 
46 

Hedrick v. United States, 184 F. Supp. 927 (D.N.M. 
1960) ......................................................................................... 47 

Henderson v. United States, 965 F.2d 1488 (8th 

Cir. 1992) ............................................................................. 
44, 45 

Holt v. United States, 46 F.3d 1000 (10th Cir. 
1995) ......................................................................................... 46 

Islands, Inc. v. United States Bureau of Reclama- 
tion, 64 F. Supp. 2d 966 (E.D. Cal. 1999) ........................... 

20 

Kennedy v. Texas Utils., 179 F.3d 258 (5th Cir. 
1999) ......................................................................................... 45 

Lamar v. Micou, 114 U.S. 218 (1885) ................................ 

33 

Lenoir v. Porters Creek Watershed Dist., 586 F.2d 
1081 (6th Cir. 1978) ............................................................ 30, 47 

VI 

Cases—Continued: Page 

Menominee Indian Tribe v. Thompson, 161 F.3d 
449 (7th Cir. 1998), cert. denied, 526 U.S. 1066 
(1999) ........................................................................................ 33 

Mocklin v. Orleans Levee Dist., 877 F.2d 427 (5th 

Cir. 1989) ............................................................................. 
46, 47 

Morici Corp. v. United States, 681 F.2d 645 (9th 

Cir. 1982) ...................................................................... 
19, 20, 48 

National Mfg. Co. v. United States, 210 F.2d 263 
(8th Cir.), cert. denied, 347 U.S. 967 (1954) ........... 
17, 30, 44 

Papasan v. Allain, 478 U.S. 265 (1986) ........................... 
32-33 

Parks v. United States, 370 F.2d 92 (2d Cir. 1966)........... 
44 

Reese v. South Fla. Water Mgmt. Dist., 59 F.3d 1128 
(11th Cir. 1995) ....................................................................... 
46 

E. Ritter & Co. v. Department of the Army, 874 F.2d 
1236 (8th Cir. 1989) ................................................................ 
45 

Stover v. United States, 332 F.2d 204 (9th Cir.), 
cert. denied, 379 U.S. 922 (1964) ......................................... 
44 

Taylor v. United States, 590 F.2d 263 (8th Cir. 
1979) ......................................................................................... 47 

Thomas v. United States, 959 F.2d 232 (4th Cir. 
1992) ......................................................................................... 46 

United States v. Gerlach Live Stock Co., 339 U.S. 
725 (1950) ....................................................................... 

13, 30, 31 

United States v. Iron Mountain Mines, Inc., 881 

F. Supp. 1432 (E.D. Cal. 1995) ............................................. 

20 

United States v. James, 478 U.S. 597 (1986) .............. 
passim 

United States v. Sponenbarger, 308 U.S. 256 
(1939) ........................................................................................ 15 

Williams v. United States, 957 F.2d 742 (10th Cir. 
1992) ......................................................................................... 45 

Statutes and regulations: 

Act of June 25, 1910, ch. 407, § 4, 36 Stat. 836 ..................... 
6 

Act of Mar. 1, 1917, ch. 144, 39 Stat. 948: 
§ 1, 39 Stat. 948 ....................................................................... 4 

VII 

Statutes—Continued: Page 

§ 2, 39 Stat. 949 ....................................................................... 
4 

Act of Dec. 5, 1924, ch. 4, § 4(B), 43 Stat. 702 ...................... 
6 

Act of May 15, 1928, ch. 569, 45 Stat. 534: 
§ 1, 45 Stat. 534-535 ............................................................... 
4 

§ 3, 45 Stat. 535-536 ............................................................... 
4 

§ 13, 45 Stat. 539 .................................................................... 
4 

Act of June 15, 1936, ch. 548, § 5, 49 Stat. 1509 ................... 
42 

Act of June 22, 1936, ch. 689, 49 Stat. 1622 .......................... 
7 

Act of June 28, 1938, ch. 795, § 9, 52 Stat. 1226 ................... 
23 

Act of Aug. 11, 1939, ch. 699, 53 Stat. 1414 .......................... 
48 

Act of June 5, 1944, ch. 234, 58 Stat. 270 ............................... 
48 

Act of Sept. 26, 1950, ch. 1047, § 1, 64 Stat. 1036 ................ 
19 

Act of Dec. 29, 1950, ch. 1183, 64 Stat. 1124 ......................... 
48 

Act of Aug. 27, 1954, ch. 1012, § 1, 68 Stat. 879 ................... 
19 

Act of Feb. 25, 1956, ch. 71, 70 Stat. 28 ................................. 
48 

Act of Aug. 1, 1956, ch. 809, 70 Stat. 775 .............................. 
48 

Act of Aug. 6, 1956, ch. 981, 70 Stat. 1059 ............................ 
48 

Act of Aug. 16, 1957, Pub. L. No. 85-152, 71 Stat. 
372 ............................................................................................. 48 

Act of June 3, 1960, Pub. L. No. 86-488, 74 Stat. 156 ......... 

48 

Act of Aug. 24, 1962, Pub. L. No. 87-594, 76 

Stat. 395 ............................................................................... 

47-48 

Act of Sept. 20, 1966, Pub. L. No. 89-596, 80 

Stat. 822 ................................................................................... 

47 

Caminetti Act, ch. 183, 27 Stat. 507 ....................................... 
3-4 

Energy and Water Development Appropriations Act, 
1998, Pub. L. No. 105-62, 111 Stat. 1320 ............................ 
8 

Federal Tort Claims Act, 28 U.S.C. 2671 et seq. ............. 
11, 43 

28 U.S.C. 2680(a) .................................................................... 
43 

Flood Control Act of 1928, 33 U.S.C. 702c et seq. ............... 
12 

33 U.S.C. 702c ................................................................. 
passim 

33 U.S.C. 702j ..................................................................... 
41, 42 

33 U.S.C. 702j-2 .................................................................. 
41, 42 

Flood Control Act of 1936, ch. 688, 49 Stat. 1570: 
§ 1, 49 Stat. 1570 ..................................................................... 
23 

§ 2, 49 Stat. 1570-1571 ........................................................... 23 

VIII 

Statutes and regulations—Continued: 
Page 

§ 6, 49 Stat. 1592 .................................................................... 
23 

§ 8, 49 Stat. 1596 .................................................................... 
30 

Flood Control Act of 1944, ch. 665, 58 Stat. 887 .................. 
8 

§ 1, 58 Stat. 888 ..................................................................... 
24 

58 Stat. 888-889 .............................................................. 
24 

§ 2, 58 Stat. 889 ................................................................... 
30 

§ 7, 58 Stat. 890 ............................................................. 
8, 24-25 

§ 10, 58 Stat. 901 ................................................................... 
9, 25 

Flood Control Act of 1946, ch. 596, 60 Stat. 647 .................. 
30 

Rivers and Harbors Act of 1935, ch. 831, 49 Stat. 
1038 ......................................................................................... 6 

Rivers and Harbors Act of 1937, ch. 832, § 2, 50 Stat. 
850 ..................................................................................... 

7, 19, 20 

Water Resouces Development Act of 1986, Pub. L. 

No. 99-662, Tit. XI, § 1106, 100 Stat. 4229 ......................... 

4 

22 U.S.C. 277d-12 ...................................................................... 
48 

30 U.S.C. 877(f) .......................................................................... 
48 

42 U.S.C. 4022(a)(2)(B) ............................................................. 
48 

33 C.F.R. 208.11 .............................................................. 
9, 10, 48 

Section 208.11(c)(3) .............................................................. 
10 

Section 208.11(d)(4) .............................................................. 
10 

Section 208.11(d)(5)(i) .......................................................... 
10 

Section 208.11(e) ............................................................... 
28, 47 

Miscellaneous: 

20 Fed. Reg. 9181 (1955).................................... 

10, 27, 28, 29, 32 

41 Fed. Reg. 20,400 (1976) ....................................................... 
10 

H.R. Comm. on Flood Control Doc. No. 2, 78th Cong., 2d 

Sess., San Joaquin River and Tributaries (Comm. 
Print 1944) ..................................................................... 
25, 26, 27 

H.R. Doc. No. 146, 80th Cong., 1st Sess. (1947) .................. 
8, 28 

H.R. Doc. No. 416, 84th Cong., 2d Sess. Pt. 1 (1956) .......... 
3, 4, 

5, 6, 7, 20 

H.R. Misc. Rep. No. 759, 77th Cong., 1st Sess. 
(1941) ........................................................................................ 24 

IX 

Miscellaneous—Continued: Page 

H.R. Misc. Rep. No. 799, 76th Cong., 1st Sess. 
(1939) ...................................................................................... 23 

H.R. Rep. No. 190, 105th Cong., 1st Sess. (1997) ................ 

8 

H.R. Rep. No. 1309, 78th Cong., 2d Sess. (1944) ............... 
8, 25 

http://water.wr.usgs.gov/index.html ..................................... 39 

Interim Renewal Contract Between the United States 
and Madera Irrigation District Providing for Pro- 
ject Water Service: 
Art. 1: 
§ (c) ................................................................................... 

36, 39 

§ (d) ...................................................................................... 
36 

Art. 3: 
§ (h)(1) ................................................................................. 
36 

§ (h)(3) ................................................................................. 
37 

Report of the State Engineer to the Legislature of 

California – Session of 1880, Pt. II (1880) ........................ 

2 

S. Doc. No. 113, 81st Cong., 1st Sess. (1949) .............. 
2, 3, 9, 28 

U.S. Army Corps of Engineers, Post-Flood Assess- 
ment for 1983, 1986, 1995, 1997, Central Valley, 
California (1999) ............................................ 

8, 9, 11, 22, 37-38 

U.S. Army Corps of Engineers, Report on Reservoir 
Regulation for Flood Control, Friant Dam and 
Millerton Lake, San Joaquin River, California 
(Dec. 1955, rev. Aug. 1980) .......................................... 
7, 9, 10, 

11, 29, 33, 34, 36, 39 

In the Supreme Court of the United States 

No. 99-859 

CENTRAL GREEN CO., PETITIONER 

v. 
UNITED STATES OF AMERICA 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE UNITED STATES 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1-9) is re- 
ported at 177 F.3d 834. The opinion of the district court (Pet. 
App. 10-20) is unreported. 

JURISDICTION 

The judgment of the court of appeals was entered on May 
20, 1999. A petition for rehearing was denied on September 
7, 1999 (Pet. App. 21). The petition for a writ of certiorari 
was filed on November 19, 1999, and was granted on March 
20, 2000. The jurisdiction of this Court rests on 28 U.S.C. 
1254(1). 

STATUTE INVOLVED 

33 U.S.C. 702c, in pertinent part, is in App., infra, 1a. 

STATEMENT 

The Flood Control Act of 1928, 33 U.S.C. 702c, provides 
that “[n]o liability of any kind shall attach to or rest upon the 

(1) 

2 

United States for any damage from or by floods or flood 
waters at any place.” Petitioner claims that the waters that 
damaged its property—allegedly the result of a leak from 
the Madera Canal in the Friant Division of California’s 
Central Valley Project (CVP)—were irrigation waters and 
not flood waters, and that the court of appeals used the 
wrong test to determine that they were flood waters. To 
place this issue in context, it is necessary to understand the 
interrelated history of irrigation and flood control in 
California’s Central Valley, the purposes and operations of 
the CVP and its Friant Division, and the relationship of the 
Madera Canal to both irrigation and flood control. 

1. History of Flooding in the Central Valley. The Cen- 
tral Valley consists of the basins of the Sacramento River in 
the north and the San Joaquin River in the south. Bordered 
on the east by the Sierra Nevada Mountains and on the west 
by the Coast Range, the valley extends almost 500 miles and 
includes more than one third of the State. The two rivers 
flow toward each other and join in the Sacramento-San 
Joaquin delta, eventually emptying into San Francisco Bay 
and, from there, into the Pacific Ocean. S. Doc. No. 113, 81st 
Cong., 1st Sess. 83 (1949) (S. Doc. No. 113). 

Efforts to address the problem of flooding in the Central 
Valley began as early as 1880. See Report of the State 
Engineer To The Legislature of California—Session of 1880, 
Pt. II, at 5 (1880). California’s State Engineer reported that 
the low lands of the Sacramento and San Joaquin valleys 
“have been and still in a great measure are subject to annual 
inundation.” Ibid. According to the State Engineer, the 
Sacramento River “brings down a formidable flood volume 
almost every year, inundates a large area of country, and 
seriously threatens with devastation several hundred 
thousands of acres.” Ibid. The San Joaquin was “in cor- 
respondingly high flood” approximately once every four 
years. Ibid. Periodic flooding in the winter contrasted with 
generally inadequate sustained rainfall during the summer, 

3 

making “the use of irrigation imperative for production of 
most agricultural crops.” S. Doc. No. 113, at 85. 

Beginning early in the 20th century, California actively 
pursued a coordinated approach to flooding and water short- 
ages. In 1915, the state legislature authorized the convening 
of a conference “[f]or the purpose of considering and recom- 
mending a unified state policy with reference to irrigation, 
reclamation, water storage, flood control, municipalities, and 
drainage, with due regard to the needs of water power, 
mining, and navigation.” H.R. Doc. No. 416, 84th Cong., 2d 
Sess. Pt. 1, at 109 (1956) (H.R. Doc. 416).1 The following 
year, the State Water Problems Conference issued its 
report. Even at that early planning stage, the Conference 
recognized that the use of dams and their resulting reser- 
voirs for both flood control and irrigation involved a careful 
balancing of “antagonistic interests.” Id. at 128. The report 
explained that “[a] reservoir for highest economic efficiency 
in flood control should be kept empty until actual flood” and 
then gradually emptied “to give storage for another flood. 
That same reservoir, if used for power or irrigation would, 
on the contrary, be filled as soon as possible—before actual 
flood if conditions permitted—and kept full, lest there should 
not be subsequent flood to fill it.” Id. at 129. 

2. Early Federal Involvement in Central Valley Flood 
Control. In 1893, Congress established the California Debris 
Commission, a panel of three Army engineers appointed by 
the President. Congress directed the Commission to adopt 
plans to address flooding and navigation problems caused by 
tailings from hydraulic mining that had clogged the channels 
of the Sacramento and San Joaquin Rivers. Caminetti Act, 

1 This document is a compilation of state and federal materials 
pertaining to the Central Valley Project. For ease of reference, we cite 
this document rather than the original sources. 

4 

ch. 183, 27 Stat. 507; see also H.R. Doc. 416, at 50.2 In 1917, 
Congress authorized the Secretary of War to carry out the 
Commission’s plans to control floods on the Sacramento 
River. Act of Mar. 1, 1917, ch. 144, § 2, 39 Stat. 949. That 
Act authorized expenditure of $45 million for flood control 
work on the Mississippi River, conditioned upon contribu- 
tions of at least half that amount from “local interests 
protected thereby.” § 1, 39 Stat. 948. Congress continued to 
link flood control in the Central Valley and along the 
Mississippi in the Flood Control Act of 1928, Act of May 15, 
1928, ch. 569, § 1, 45 Stat. 534-535, which contains the 
immunity provision at issue in this case (§ 3, 45 Stat. 535- 
536). That Act increased the authorized federal expendi- 
tures for flood control on the Sacramento River to a total of 
$17.6 million (§ 13, 45 Stat. 539). 

3. Construction of the Central Valley Project and Friant 
Dam. As the federal government was making its first 
investments in flood control on the Sacramento River, 
California was investigating a coordinated approach to water 
problems, including flood control, throughout the Central 
Valley. See H.R. Doc. 416, at 139-256. Those investigations 
culminated in 1931 in a State Water Plan submitted to the 
California legislature by the State’s Director of Public 
Works. Id. at 257. That plan addressed California’s “two- 
fold” water problem, “involving first the conservation and 
utilization of its water resources, and second, the control of 
floods.” Id. at 258-259. The plan called for a system of dams, 
reservoirs, and canals in the Central Valley that would, 
among other functions, pump water from the Sacramento- 
San Joaquin delta into the San Joaquin basin, at Mendota, for 
irrigation. That system would permit the waters of the San 

2 The Commission was abolished in 1986 and its functions transferred 
to the Secretary of the Army. Water Resources Development Act of 1986, 
Pub. L. No. 99-662, Tit. XI, § 1106, 100 Stat. 4229. 

5 

Joaquin to be diverted from farther upstream, at Friant, to 
irrigate previously arid upstream lands. Id. at 261. 

The 1931 State Water Plan specifically called for construc- 
tion of Friant reservoir, as well as the Madera and Friant- 
Kern Canals to be fed by that reservoir. H.R. Doc. 416, at 
271-272. Moreover, the plan proposed “[t]he reservation of 
space and its operation for flood control * * * in each of the 
major reservoirs on the more important streams.” Id. at 295. 
The plan further specified the quantity of storage space to be 
reserved for flood control in each of 14 proposed reservoirs, 
including Friant, and explained that “operation of these 
reservoirs for flood control would not materially impair their 
value for conservation purposes, nor materially decrease the 
amount of value of the electric energy generated by water 
released from them.” Id. at 295. Operating the reservoirs 
“specifically for flood control * * * would result in a sub- 
stantial reduction of floods and in an increased degree of pro- 
tection to the areas subject to overflow.” Id. at 297.3 

3 The Senate Committee on Irrigation and Reclamation recognized 
that California’s water plan as a whole, and Friant reservoir in particular, 
would serve an important flood control function. In a 1933 report, the 
Committee stated: “One of the important proposed objectives of the great 
central valley project of California is the provision of additional flood 
protection on the Sacramento and San Joaquin Rivers by the regulation of 
floods in the two proposed major storage reservoirs, Kennett Reservoir on 
the Sacramento River and Friant Reservoir on the San Joaquin River.” 
H.R. Doc. 416, at 500. The Committee compared the problem of flooding 
on the Sacramento and San Joaquin Rivers “to that on the Mississippi 
river.” Id. at 499. It recognized that “[a]lthough of smaller magnitude 
than that on the Mississippi River, the problem [of flood control on the 
Sacramento and San Joaquin] is even more intensive, involving maximum 
flood flows ten times as great per unit of drainage area than the maximum 
flood flow of the Mississippi below Cairo or Arkansas City.” Ibid. The 
Committee thus predicted that the Kennett and Friant reservoirs “can be 
operated to materially decrease the flood flows and will, therefore, greatly 
lessen the frequency of floods and possible damage resulting therefrom.” 
Ibid. 

6 

In 1933, the California legislature authorized construction 
of a coordinated water project along the lines of the State 
Water Plan. That planned “Central Valley Project,” which 
included both Friant Dam and the Madera Canal, was to be 
financed by the sale of revenue bonds. H.R. Doc. 416, at 412, 
423. Almost from the beginning, however, state financing 
appeared infeasible and federal involvement became essen- 
tial to the project’s realization. Id. at 522. In 1935, the State 
legislature acknowledged those facts and authorized the 
State’s Department of Public Works “to prosecute efforts to 
secure Federal aid and assistance in financing the construc- 
tion of the Central Valley project.” Id. at 555. 

In the ensuing years, the federal government acted to 
advance construction of the CVP and, ultimately, to make it 
an entirely federal project. In 1935, Congress authorized the 
Army Corps of Engineers to undertake construction of 
Kennett Dam (now called Shasta Dam) on the Sacramento 
River, one of the major components of the coordinated 
project that was initially planned and authorized by the 
State. Rivers and Harbors Act of 1935, ch. 831, 49 Stat. 
1038; see also H.R. Doc. 416, at 544-555. Also in 1935, the 
President approved a report by the Secretary of the Interior 
on the feasibility of the entire Central Valley Project as a 
reclamation project pursuant to federal reclamation laws. 
H.R. Doc. 416, at 562-567.4 

As described in that report, the 
CVP included among its principal features Kennett 
Reservoir on the Sacramento River, pumping plants and 
canals to deliver water from the Sacramento-San Joaquin 
delta to Mendota, Friant Reservoir on the San Joaquin 

4 Under the Act of June 25, 1910, ch. 407, § 4, 36 Stat. 836, no 
reclamation project could be undertaken unless recommended by the 
Secretary of the Interior and approved by the President. Similarly, under 
the Act of Dec. 5, 1924, ch. 4, § 4(B), 43 Stat. 702, no reclamation project 
could be approved for construction until the Secretary of the Interior 
made a written finding that the project was feasible and that its cost was 
likely to be repaid to the United States. 

7 

River, and the Madera and Friant-Kern Canals to be fed by 
the Friant reservoir. Id. at 564-565. In 1936, Congress 
appropriated funds specifically for “construction of Friant 
Reservoir and irrigation facilities therefrom.” Act of June 
22, 1936, ch. 689, 49 Stat. 1622. 

Finally, in 1937, Congress transferred responsibility for 
construction of the CVP from the Corps of Engineers to the 
Secretary of the Interior. Rivers and Harbors Act of 1937, 
ch. 832, § 2, 50 Stat. 850. The same statute provided that: 

the entire Central Valley project * * * is hereby 
reauthorized and declared to be for the purposes of im- 
proving navigation, regulating the flow of the San 
Joaquin River and the Sacramento River, controlling 
floods, providing for storage and for the delivery of the 
stored waters thereof, for the reclamation of arid and 
semiarid lands and lands of Indian reservations, and 
other beneficial uses, and for the generation and sale of 
electric energy as a means of financially aiding and 
assisting such undertakings and in order to permit the 
full utilization of the works constructed to accomplish the 
aforesaid purposes. 

Ibid. Congress also specified that the project’s dams and 
reservoirs “shall be used, first, for river regulation, improve- 
ment of navigation, and flood control; second, for irrigation 
and domestic uses; and, third, for power.” Ibid. 

Construction of Friant Dam began in October 1939 and 
the dam was in partial operation by November 1942. U.S. 
Army Corps of Engineers, Report on Reservoir Regulation 
for Flood Control, Friant Dam and Millerton Lake, San 
Joaquin River, California 2 (Dec. 1965, rev. Aug. 1980) 
(Friant Flood Report) (lodged with the Clerk). Much of the 
remaining construction work on the dam and related 
features of the project was deferred during the Second 
World War (ibid.), but by February 1947, the dam itself was 
“largely constructed,” the Madera Canal was “essentially 

8 

complete,” and construction of the Friant-Kern Canal was 
underway. H.R. Doc. No. 146, 80th Cong., 1st Sess. 2 (1947). 
Friant Dam and its reservoir, named Millerton Lake, were 
completed in 1949. U.S. Army Corps of Engineers, Post- 
Flood Assessment for 1983, 1986, 1995, and 1997, Central 
Valley, California 3-32 (1999) (Post-Flood Assessment).5 

Congress confirmed the flood control role of Friant Dam 
while it was still under construction. In the Flood Control 
Act of 1944, ch. 665, 58 Stat. 887, Congress centralized 
responsibility for flood control operations at federal re- 
servoirs by directing the Secretary of War to prescribe 
regulations governing such operations at “all reservoirs con- 
structed wholly or in part with Federal funds provided on 
the basis of [flood control or navigation] purposes.” § 7, 58 
Stat. 890. The House report on the 1944 Act described the 
“widespread and damaging floods [that had] occurred in 
several of the major river basins of the Nation” in 1942 and 
1943, with particular emphasis on floods in “the lower San 
Joaquin Valley.” H.R. Rep. No. 1309, 78th Cong., 2d Sess. 1, 
2 (1944) (H.R. Rep. No. 1309). That report further stated 
that recent experience “in the operation of multiple-purpose 
reservoirs during major floods has demonstrated that * * * 
reservoirs constructed wholly or in part with federal funds 

* * * should have their flood-control features operated 
under the supervision of the Chief of Engineers in 
accordance with regulations prescribed by the Secretary of 

5 In 1997, California experienced “one of the largest and most 
extensive flood disasters in the State’s history.” Post-Flood Assessment, 
at ES-1. The House Report on the bill ultimately enacted as the Energy 
and Water Development Appropriations Act, 1998, Pub. L. No. 105-62, 111 
Stat. 1320, states that, “[i]n response to the devastating floods of 1997, the 
Committee has added funds and directs the Corps of Engineers to conduct 

* * * a comprehensive post-flood assessment for the California Central 
Valley (Sacramento River Basin and San Joaquin River Basin).” H.R. 
Rep. No. 190, 105th Cong., 1st Sess. 24 (1997). The Post-Flood Assess- 
ment report responded to that directive. 

9 

War.” Id. at 7. In addition, however, the 1944 Act expressly 
approved the plan “for flood control and other purposes on 
the Lower San Joaquin River and tributaries * * * in ac- 
cordance with the recommendations of the Chief of Engi- 
neers” and authorized $8 million for “initiation and partial 
accomplishment of the plan.” § 10, 58 Stat. 901. 

4. Operation of Friant Dam and the Madera Canal. 
Friant Dam, located 25 miles northeast of Fresno, is a 
concrete structure that can store 520,500 acre-feet of water. 
Friant Flood Report 11. Water is released from the dam 
into the Madera and Friant-Kern Canals as well as down the 
river either through outlets in the dam or over its spillway. 
Id. at 15. The 36-mile long Madera Canal extends northward 
from the dam, crossing the Fresno River and emptying into 
the Chowchilla River. Id. at 11; see App., infra, at 2a 
(diagram depicting Central Valley Project). Approximately 
the first 7.7 miles of the canal, including the portion that 
traverses petitioner’s property, is lined by concrete, with the 
remainder unlined and formed by dug-out clay and rock. The 
Friant-Kern Canal extends 152 miles southward from the 
dam and connects to the Kern River. Friant Flood Report 
11; Post-Flood Assessment 3-32. 

Friant Dam is owned by the United States and operated 
by the Department of the Interior as part of the CVP. Post- 
Flood Assessment 3-32. The Madera Canal, likewise part of 
the CVP (see S. Doc. No. 113, at 130), is owned by the 
United States (through the Department of the Interior) and 
operated by the Madera Irrigation District (and its legal suc- 
cessor) under contract with and supervision of the Depart- 
ment. J.A. 8, 19-47. The Department’s Bureau of Reclama- 
tion controls irrigation operations in all parts of the CVP, 
including the Friant Division. Friant Flood Report App. A. 

Pursuant to the Flood Control Act of 1944, however, the 
Friant Division’s flood control operations are regulated by 
the Corps of Engineers. 33 C.F.R. 208.11. In 1955, the 
Corps first promulgated regulations governing “the use and 

10 

operation of Friant Dam and Reservoir on San Joaquin 
River, California, for flood control purposes.” 20 Fed. Reg. 
9181. In 1976, the Corps replaced the regulations specifically 
addressing Friant Dam, and similar regulations for other 
individual reservoirs, with new regulations governing the 
operation of all projects covered by the 1944 Act or other- 
wise subject to the Corps’ authority to direct flood control 
operations, other than those owned and operated by the 
Corps itself. 41 Fed. Reg. 20,400 (1976). 

Under those regulations (which list covered projects, 
including “Friant Dam and Millerton Lake,” by name), each 
project’s flood control operations are governed by a “water 
control plan and manual” prepared by the Corps of Engi- 
neers specifically for that project. 33 C.F.R. 208.11(d)(4). 
The project owner commits to the terms of the plan and 
manual in a “letter of understanding” or a “field working 
agreement” with the Corps. 33 C.F.R. 208.11(c)(3). See 
Friant Flood Report App. A. The Corps’ plan for the Friant 
Division is designed to address two kinds of floods that occur 
in the Central Valley—floods caused by rain and floods 
caused by melting snow. Rainfloods, which typically occur in 
late fall and winter, are characterized by high peak dis- 
charges lasting only a few days at a time. Notwithstanding 
their short duration, such rains historically have flooded 
natural river channels unimproved by man-made levees and 
dams. In contrast, snow-melt floods, which occur during the 
late spring and summer, produce sustained, moderate flows 
over a period of two to three months and result in a much 
larger volume of total runoff. Id. at 9-10. Those runoffs 
require extensive monitoring to ensure against flooding. 

The plans in effect pursuant to 33 C.F.R. 208.11 for flood 
control operations of Friant Dam and its related canals 
address both rain and snow-melt floods. Regulations require 
each project to have a “Flood Control Diagram” describing 
the multiple uses of storage space behind the dam over the 
course of the year. 33 C.F.R. 208.11(d)(5)(i). The Friant 

11 

diagram shows that for ten months of the year (October 
through July), the reservoir stores water both to serve 
irrigation needs and to control floods. Friant Flood Report 
App. A, Chart A-11. “The flood control operation is 
determined daily as described on chart A-11.” Id. at A-2. 
The Flood Control Diagram also shows that during some 
portions of the year, depending on the weather, the total 
quantity of stored water necessary to satisfy irrigation 
needs and to control floods may exceed the storage capacity 
of the dam. Id. Chart A-11. At those times, “supplemental 
releases”—releases solely for flood control—are mandatory. 
Ibid. Some of those flood releases are made through the 
Madera and Friant-Kern Canals. Post-Flood Assessment 
3-32 to 3-33.6 The Corps of Engineers has estimated that 
operation of Friant Dam reduced flood damage by 
$23,690,000 in 1983, $33,190,000 in 1986, $54,310,000 in 1995, 
and $3,320,000 in 1997. Id. at 5-15, 5-27, 5-38, 5-48. 

5. This Litigation. Petitioner Central Green Company, 
the owner of pistachio orchards in Madera County, Cali- 
fornia, brought this action against the United States under 
the Federal Tort Claims Act, 28 U.S.C. 2671 et seq., alleging 
that negligent design, construction, or maintenance of the 
Madera Canal by the federal government resulted in 
property-damaging leakage of water from the canal. Pet. 

6 Operation of the Friant Division to serve the functions of flood 
control and irrigation requires extensive weather forecasting efforts by 
federal and state agencies. Friant Flood Report 16. Accurate predictions 
of water runoff historically have been difficult to make consistently. 
Between 1953 and 1978, for example, the error rate varied greatly, with 
underestimates and overestimates of the forecasted runoff into Millerton 
Lake routinely as great as 100 percent of the actual runoff. See id. Chart 
A-9. Given those large discrepancies, which by no means have been 
limited to those years, the task of managing the water level at Friant Dam 
requires great flexibility and the need to make frequent, often daily 
adjustments to the amount of water released. 

12 

App. 2; J.A. 8-9.7 The district court granted the govern- 
ment’s motion for judgment on the pleadings. Pet. App. 20. 
Rejecting petitioner’s contention that the Flood Control Act 
of 1928, 33 U.S.C. 702c et seq., did not apply because the 
waters carried through the Madera Canal are used for 
irrigation purposes and not for flood control, the district 
court observed that “[t]he legislative history [of Section 
702c] * * * is very clear that the scope of the immunity is 
very broad.” Pet. App. 19. The district court concluded that 
petitioner had “cited nothing that allows the undermining of 
the scope of that immunity when a multi-purpose project is 
involved.” Id. at 19- 20. 

The court of appeals affirmed. Pet. App. 1-9. The court 
recognized that Section 702c “confers broad immunity for 
claims arising from the design, operation, or management of 
federally authorized flood control projects.” Id. at 2. Peti- 
tioner’s “sole argument” against application of the immunity 
here, according to the court, was that the water that 
damaged its property was not “flood water” within the 
meaning of Section 702c because it was held “for irrigation 
purposes rather than flood control.” Id. at 3. The court 
concluded that its own decisions, both before and after this 
Court’s decision in United States v. James, 478 U.S. 597 
(1986), compelled rejection of that argument because the 
Madera Canal is part of a federal flood control project, the 
CVP. Pet. App. 5-8. 

7 Although for purposes of the motion for judgment on the pleadings 
the allegations of the complaint must be accepted as true, the government 
denies that leakage from the canal has caused harm to petitioners. See 
J.A. 58. At times when the canal is completely dry, petitioner’s land has 
been flooded, which suggests that the problem in fact stems not from 
leakage from the canal but from subterranean ground water or over- 
irrigation by petitioner from the water it obtains from the San Joaquin 
River. 

13 

SUMMARY OF ARGUMENT 

I. In United States v. James, 478 U.S. 597 (1986), this 
Court construed the Flood Control Act of 1928 to confer 
broad immunity from suit against the United States for 
damages by flood waters, which the Court defined as “all 
waters contained in or carried through a federal flood control 
project for purposes of or related to flood control, as well as 
to waters that such projects cannot control.” Id. at 605. 
That definition is satisfied in this case. 

II. In several statutes, Congress expressly provided that 
the entire Central Valley Project (CVP) is a flood control 
project. Both as it was originally conceived by Congress and 
as it operates in practice, the CVP’s flood control functions 
depend on the integrated operations of the project’s nu- 
merous subdivisions, which include Friant Dam and the 
Madera Canal. The timing and amount of water releases at 
each place in the CVP have consequences for flood control. 
Moreover, Congress also specified in the Flood Control Act 
of 1944 that the Friant Division (of which the Madera Canal 
is a part) is a flood control project by incorporating into the 
legislation a set of Corps of Engineers’ recommendations 
that clarified the important flood control purpose of the 
Friant Dam and the use of the Madera Canal for releases of 
flood waters. 

The 1944 Act also conferred legislative rulemaking 
authority on the Corps of Engineers to promulgate flood 
control rules for multiple-use projects. In 1955, the Corps 
promulgated such regulations for the Friant Division. That 
authoritative determination, which has been maintained 
consistently by the Corps since that time, is entitled to 
deference. United States v. Gerlach Live Stock Co., 339 U.S. 
725 (1950), is not to the contrary. The issue in that case was 
whether the reclamation laws required the government to 
compensate downstream water rights owners. In upholding 
the claims of the owners, the Court did not foreclose the 

14 

Friant Division from being deemed a flood control project 
under Section 702c. 

III. Not only is the Friant Division (and the Madera 
Canal) a flood control project, but also the Madera Canal 
carries flood waters within the meaning of James. For ten 
months of the year, Millerton Lake stores water to control 
floods and to serve irrigation needs. Petitioner’s approach 
rests on an untenable theory of legal distillation of those 
waters: that at some point in the process of capturing, 
storing, and releasing those waters it is possible to identify 
some as “flood waters” and some as “irrigation waters.” 
That theory is belied by (A) the regulatory requirements 
governing flood releases from Friant Dam, which may be 
satisfied only by channeling some of those releases into the 
Madera Canal; (B) the contract with the Madera Irrigation 
District, which expressly provides for flood waters to be 
released into the Madera Canal; and (C) the historical record 
of water flows in the canal, which establish empirically that 
more water has been released into the Madera Canal for 
flood control than for principally irrigation purposes over the 
past twenty years. There thus can be no question that the 
Madera Canal is a flood control project and the waters that 
allegedly leaked from the canal were “for purposes of or 
related to flood control.” James, 478 U.S. at 605. Moreover, 
petitioner’s allegation that water leaked from the canal is 
sufficient by itself to satisfy the alternative definition of 
“flood waters” in James as “waters that such [flood control] 
projects cannot control.” Ibid. 

IV. In this Court petitioner advances for the first time a 
novel construction of the Flood Control Act not heretofore 
adopted by a single court: that the immunity applies only 
where the waters causing damage are “primarily” for the 
purpose of flood control. That approach conflicts with the 
broad immunity recognized by the James Court as com- 
pelled by the plain language of Section 702c. Petitioner’s 
approach is unworkable since it requires courts to engage in 

15 

an analysis of a project’s “primary” purpose that Congress 
itself does not specify when enacting multiple-use water 
projects. Petitioner’s approach also produces the result— 
plainly inconsistent with congressional intent—that scores of 
multiple-use projects recognized by the Corps under its 
delegated rulemaking authority as flood control projects 
would be ineligible for Section 702c immunity. 

ARGUMENT 

I. UNITED STATES v. JAMES ESTABLISHES 
THAT THE IMMUNITY PROVIDED BY THE 
FLOOD CONTROL ACT MUST BE BROADLY 
CONSTRUED TO INCLUDE ALL DAMAGES 

CAUSED BY FLOOD WATERS IN A FLOOD 
CONTROL PROJECT 

In the Flood Control Act of 1928, Congress embarked 
upon a multi-decade program of unprecedented scope to 
construct dams and other structures for flood control. See 
United States v. Sponenbarger, 308 U.S. 256, 262 (1939). 
Congress limited the government’s exposure to financial 
liability for damages resulting from flood control activities 
by including in the 1928 legislation a provision that “[n]o 
liability of any kind shall attach to or rest upon the United 
States for any damage from or by floods or flood waters at 
any place.” 33 U.S.C. 702c. 

A. The James Test Confers Immunity From Liability For 

Damage From Waters Carried In Flood Control Pro- 
jects That Either Are Related To Flood Control Or 

Cannot Be Controlled In The Project 

In United States v. James, 478 U.S. 597 (1986), this Court 
rejected a narrow construction of Section 702c immunity, 
construing it to extend to both property damage and 
personal injury. Id. at 605. Noting that it “is difficult to 
imagine broader language” than Section 702c, the Court held 
that the “sweeping language” of the text and the “equally 

16 

broad and emphatic language” of its legislative history 
support recognition of a broad immunity for the United 
States. Id. at 604, 608. The Court added that “Congress’ 
choice of the language ‘any damage’ and ‘liability of any 
kind’ further undercuts a narrow construction.” Id. at 605 
(quoting 33 U.S.C. 702c).8 

Justice Powell’s opinion for the Court in James 
emphasized that a broad immunity is consistent with the 
purpose of Section 702c. The Court explained that “the 
legislative history of § 702c shows a consistent concern for 
limiting the Federal Government’s financial liability to 
expenditures directly necessary for the construction and 
operation of the various projects.” 478 U.S. at 607. The 
Court also stressed that “[n]umerous statements concerning 
the immunity provision confirm that it was intended to 
reaffirm sovereign immunity in such a dangerous and 
extensive project,” including this statement from the Chair 
of the House Rules Committee: 

I want this bill so drafted that it will contain all the 
safeguards necessary for the Federal Government. If we 
go down there and furnish protection to these people— 
and I assume it is a national responsibility—I do not 
want to have anything left out of the bill that would 
protect us now and for all time to come. I for one do not 
want to open up a situation that will cause thousands of 
lawsuits for damages against the Federal Government in 
the next 10, 20, or 50 years. 69 Cong. Rec. 6641 (1928) 
(remarks of Rep. Snell). 

8 Protection of the United States from liability for flooding of land 
caused by alleged construction failures of a federal flood control project 
was central to Congress’s concern in creating an immunity for federal 
flood control activities. See James, 478 U.S. at 606-608; see also id. at 617 
(Stevens, J., dissenting) (agreeing with majority that immunity under 
Section 702c should extend to “overflow damage to land”). 

17 

Ibid. Accordingly, Section 702c “safeguarded the United 
States against liability of any kind for damage from or by 
floods or flood waters in the broadest and most emphatic 
language.” Id. at 608 (emphasis added) (quoting National 
Mfg. Co. v. United States, 210 F.2d 263, 270 (8th Cir.), cert. 
denied, 347 U.S. 967 (1954)). The language the Court chose 
to define the scope of that immunity was correspondingly 
broad: “The Act concerns flood control projects designed to 
carry floodwaters. It is thus clear from § 702c’s plain 
language that the terms ‘flood’ and ‘flood waters’ apply to all 
waters contained in or carried through a federal flood control 
project for purposes of or related to flood control, as well as 
to waters that such projects cannot control.” 478 U.S. at 605 
(emphasis added).9 Under James, therefore, the govern- 
ment is entitled to immunity in this case because, as we show 
below, it is a matter of public record that: (1) the Madera 
Canal is part of a federal flood control project and (2) the 
waters that caused the flood either (a) are carried in the 

9 The Court in James (478 U.S. at 605) adopted virtually verbatim 
the position set forth in the government’s brief: “Since Congress was 
legislating with respect to flood control projects designed to carry flood 
waters, the conclusion is inescapable that the statute refers to all waters 
contained in or carried through such structures as well as waters the 
structures could not retain.” 85-434 U.S. Br. 17. The government noted 
that the Fifth Circuit in James had viewed the statutory language as 
ambiguous “because the damage that formed the basis for the tort claim 
might not be related to the operation of a flood control project.” Id. at 17 

n.7. Rather than broadly arguing for a test that reached well beyond the 
facts presented in James, as petitioner asserts (Br. 10), the government in 
James specifically noted that the Court did not need to decide whether the 
immunity applied in other circumstances, because the damage in James 
“did result from the release of flood waters from a federal flood control 
project.” Id. at 17 n.7. The Court itself agreed with that conclusion. See 
478 U.S. at 610 (“the release of the waters at the Millwood Reservoir and 
at the Courtableau Basin was clearly related to flood control”). As we 
establish on pp. 32-40, infra, that is also true in this case. 

18 

project “for purposes of or related to flood control” or (b) are 
“waters that such projects cannot control.” Ibid. 

B. The Court Of Appeals Properly Upheld The Govern- 
ment’s Immunity Under James 

The courts below properly dismissed petitioner’s claims 
on the ground that petitioner was seeking compensation for 
“damage from or by floods or flood waters,” within the 
meaning of the immunity conferred by 33 U.S.C. 702c. The 
court of appeals correctly held that the James test was 
satisfied because the Madera Canal is part of the Central 
Valley Project, which is indisputably a flood control project, 
and thus all waters in the Project are contained in or carried 
through it for purposes that are at least related to flood 
control. Pet. App. 3-8. Petitioner has questioned that deter- 
mination, drawing support from the court of appeals’ state- 
ment that the Madera Canal itself “is not a flood control 
project and serves no flood control purpose.” Id. at 9. That 
observation, which was made without citation to any 
sources, is both inaccurate and legally irrelevant. 

As we demonstrate in Part II, infra, numerous statutory 
and regulatory authorities establish not only that the CVP is 
a flood control project, but also that the Friant Division of 
the CVP—of which the Madera Canal is a critical component 
—is a flood control project. In addition, as we demonstrate in 
Part III, infra, judicially-noticeable materials establish that 
the Madera Canal itself serves important flood control pur- 
poses. 

Moreover, regardless of the purposes for which the water 
is contained in or carried through the Madera Canal, the 
allegations in petitioner’s complaint establish the second 
prong of the James test: that the property was damaged by 
waters that a federal flood control “project[] cannot control.” 
478 U.S. at 605. The complaint alleges that the “Madera 
Canal was constructed or has been maintained in such a 
fashion that substantial amounts of water leak and have 

19 

leaked from [respondent’s] canal,” and that petitioner’s 
property was damaged by those alleged leaks. J.A. 9. Thus, 
if the Court concludes that the Madera Canal is part of a 
flood control project as set forth in Part II, the legal 
requirements for immunity under both prongs of the James 
test have been satisfied. That alternative ground for 
affirmance (the second prong of the James test) is consistent 
with the analysis of the court of appeals in Morici Corp. v. 
United States, 681 F.2d 645 (9th Cir. 1982), on which the 
court below relied. Pet. App. 6. In Morici, the Ninth Circuit 
had held that the government was immune from suit for 
flooding caused by waters that could not be controlled in the 
CVP because of water seepage from the Sacramento River. 
681 F.2d at 646-648. 

II. CONGRESS UNAMBIGUOUSLY ESTABLISHED 
THE FRIANT DIVISION OF THE CENTRAL 

VALLEY PROJECT AS A FLOOD CONTROL 
PROJECT 

A. The Entire Central Valley Project Is A Federal 

Flood Control Project 

In the Rivers and Harbors Act of 1937, ch. 832, § 2, 50 
Stat. 850, Congress authorized all of the Central Valley Pro- 
ject, including its irrigation canals, as a federal flood control 
project. In particular, that statute provides: “[T]he entire 
Central Valley project, California, * * * is hereby 
reauthorized and declared to be for” purposes including 
“controlling floods” (emphasis added). 

10 Petitioner is mis- 
taken that the 1937 Act’s authorization of the CVP for flood 

10 See p. 7, supra. Subsequent statutes authorizing additional 
features of the CVP repeated or reincorporated that language. See, e.g., 
Act of Sept. 26, 1950, ch. 1047, § 1, 64 Stat. 1036 (“the entire Central 
Valley project * * * is hereby reauthorized and declared to be for the 
purposes of * * * controlling floods”); Act of Aug. 27, 1954, ch. 1012, § 1, 
68 Stat. 879 (“the entire Central Valley project * * * is hereby reauthor- 
ized” and declared to be for the purposes previously authorized). 

20 

control purposes extended only to its “ ‘dam[s] and reser- 
voirs’ but not its irrigation canals.” Br. 27 (quoting text of 
statute). 

11 To the contrary, Friant Dam and the Madera and 
Friant-Kern Canals were expressly included in plans for the 
CVP. H.R. Doc. 416, at 564-565. 

As originally conceived and as operated for more than 50 
years, the CVP’s flood control operations have been inte- 
grated among the various subdivisions of the project. Be- 
cause the Sacramento and San Joaquin Rivers eventually 
merge at a delta near San Francisco Bay, waters released 
from any dam on either river (or their tributaries) will affect 
the volume of water in the delta and such releases through- 
out the project must be coordinated carefully to avoid floods. 
Thus, courts in the Ninth Circuit have uniformly held that, 
notwithstanding its multiple purposes, the entire CVP is a 
federal flood control project for which the flood immunity 
applies. See, e.g., Morici Corp., 681 F.2d at 648 (government 
immune from suit for crop damages caused by seepage from 
Sacramento River); Islands, Inc. v. United States Bureau of 
Reclamation, 64 F. Supp. 2d 966, 969 (E.D. Cal. 1999); 
United States v. Iron Mountain Mines, Inc., 881 F. Supp. 
1432, 1439 (E.D. Cal. 1995). 

11 Section 2 of the 1937 Act mentions the purpose of the CVP to be 
“controlling floods” in two provisos, only the second of which is addressed 
by petitioner. See 50 Stat. 850. The first proviso authorizes “the entire 
Central Valley project” for the purpose of “controlling floods.” Ibid. 
Petitioner attempts to draw significance (Br. 27) from the fact that the 
second proviso of Section 2 states that “the said dam and reservoirs shall 
be used, first, for river regulation, improvement of navigation, and flood 
control; second, for irrigation and domestic uses; and, third, for power.” 
Ibid. (emphasis added). The absence of any mention of “canals” in the 
priority to be given to the respective uses of the project is not surprising, 
since canals were thought to serve only irrigation and flood control 
functions at that time. In any event, the omission of “canals” in the second 
proviso cannot blunt the significance of the first proviso’s unambiguous 
intent that the “entire Central Valley Project”—which unquestionably 
includes its canals—is for the purpose of “controlling floods.” 

21 

A few examples using projects in the San Joaquin River 
basin illustrate why the CVP is properly viewed as an 
integrated flood control project. See App., infra, 2a (map 
with water release capacities). Three dams regulate flows 
into the San Joaquin upstream of the Mariposa Bypass: 
Friant Dam (operated by the Bureau of Reclamation) on the 
San Joaquin River; Hidden Dam (operated by the Corps of 
Engineers) on the Fresno River, which flows into the San 
Joaquin north of Mendota; and Buchanan Dam (operated by 
the Corps) on the Chowchilla River, which flows into the San 
Joaquin River (roughly parallel to but north of the Fresno 
River). The Madera Canal starts at the San Joaquin, 
traverses the Fresno (with one bypass enabling water to be 
released into the Fresno and another to send water under- 
neath the river), and empties into the Chowchilla. The 
Corps has calculated flood channel flows—the maximum 
amount of water that will not cause flooding—for those 
rivers in cubic feet per second (cfs). The flood channel flow 
of the San Joaquin immediately below Friant Dam is 8000 
cfs; of the Fresno River below Hidden Dam, 5000 cfs; and of 
the Chowchilla River below Buchanan Dam, 5000 cfs. Thus, 
if each dam releases the maximum that can be accommo- 
dated by its immediate downstream channel, the releases 
would total 18,000 cfs. But the flood channel flow for the San 
Joaquin River downstream of where the Fresno and Chow- 
chilla Rivers enter it is only 16,500 cfs. Accordingly, the 
three dams must coordinate their releases so that not all 
three are releasing their maximum at the same time, which 
would exceed channel capacity by 1500 cfs. 

Likewise, when releases from Friant Dam must exceed 
8000 cfs to avoid surpassing the reservoir’s capacity, the 
Bureau releases water into the Madera and Friant-Kern 
Canals to avoid flooding on the San Joaquin below Friant 

22 

12 Excess water from Friant may travel through the 
Madera Canal to be discharged into the Fresno and/or 
Chowchilla Rivers to avoid flooding a narrow stretch of the 
San Joaquin at Skaggs Branch before the Fresno flows into 
the San Joaquin River. But such releases must be co- 
ordinated carefully with the Corps of Engineers, which may 
be making releases of water from its Hidden and Buchanan 
Dams. See Post-Flood Assessment 3-34 to 3-35 (noting that 
“[d]uring flood management operations, floodwaters can be 
routed to the Fresno River via the Madera Canal” and 
“flows from the Madera Canal can be directed down Ash 
(5000 cfs) and Berenda (2000 cfs) Sloughs, about 10 miles 
downstream from Buchanan Dam” on the Chowchilla River). 
These examples of routine practice illustrate what is true of 
the entire Central Valley Project: that the release of water 
at one place necessarily affects decisions by Corps and 
Bureau personnel as to whether water should be released at 
another place. The court below thus properly held that the 
United States is immune from petitioner’s suit because the 
CVP, of which the Madera Canal is a part, is a flood control 
project. See Pet. App. 8. 

B. Congress Specified That The Friant Division Of The 

CVP Is A Flood Control Project 

Even if Congress’s intent had been unclear in designating 
the entire Central Valley Project as a federal flood control 
project warranting application of Section 702c immunity, any 
such ambiguity would be irrelevant here because Congress 

12 An additional complicating factor in release calculations from 
Friant Dam is that the Little Dry, Big Dry, and Cottonwood Creeks 
empty into the San Joaquin River just below Friant Dam, so their flow at 
peak levels must be subtracted from the amount of water that may safely 
be released from Friant Dam. That amount of water, in turn, must either 
be stored in Millerton Lake until it can be safely released downstream or 
released into the Madera and/or Friant-Kern Canals. See Post-Flood 
Assessment 3-33 to 3-34. 

Dam. 

23 

has provided that the Friant Division is itself a federal flood 
control project. Petitioner correctly identifies the reclama- 
tion purposes of the Friant Division (Br. 27-31), but over- 
looks key enactments establishing Congress’ intent that the 
project also perform flood control functions. 

In 1936, Congress “recognized that destructive floods 
upon the rivers of the United States * * * constitute a 
menace to national welfare.” Flood Control Act of 1936, ch. 
688, § 1, 49 Stat. 1570. Congress directed the Corps of En- 
gineers to embark on “Federal investigations and improve- 
ments of rivers and other waterways for flood control and 
allied purposes,” further providing that such investigations 
“not interfere with investigations and river improvements 
incident to reclamation projects * * * undertaken by the 
Bureau of Reclamation.” § 2, 49 Stat. 1570-1571. Congress 
specifically instructed the Corps “to cause preliminary 
examinations and surveys for flood control at the following- 
named localities,” specifying further that “the Government 
shall not be deemed to have entered upon any project for the 
improvement of any waterway mentioned in this Act until 
the project for the proposed work shall have been adopted 
by law: * * * San Joaquin River from Herndon to Antioch 
and its main east side tributaries.” § 6, 49 Stat. 1592, 1595. 
The 1936 Flood Control Act required the Corps to study 
scores of rivers and to implement flood control improve- 
ments in dozens of others. 

In 1938, Congress authorized an appropriation of $375 
million for flood control works nationwide over the five-year 
period ending June 30, 1944. See Act of June 28, 1938, ch. 
795, §9, 52 Stat. 1226. The following year, a House report 
advocated “annual authorizations for flood-control projects 
to protect lives and property in the orderly development of 
the national policy of flood control.” H.R. Misc. Rep. No. 799, 
76th Cong., 1st Sess. 2 (1939). By 1941, that general recogni- 
tion of the widespread need for a comprehensive flood 
control policy had expanded to multiple-use projects. “Plans 

24 

for control of destructive floodwaters should to the extent 
practicable provide for their conservation and use for the 
benefit of all the people * * * to meet urgent needs for 
flood control, irrigation, and navigation and to satisfy the 
growing demands for electric power.” 
H.R. Misc. Rep. No. 

759, 77th Cong., 1st Sess. 3, 5 (1941). 

The Nation’s entry into World War II delayed imple- 
mentation of that policy, but by 1944 Congress again turned 
its attention to flood control. The Flood Control Act of 1944 
confirms that Congress intended the Friant Division (as well 
as many other multiple-use projects) to be a federal flood 
control project. Section 1 expressed Congress’s intent to 
“preserve and protect to the fullest possible extent estab- 
lished and potential uses, for all purposes, of the waters of 
the Nation’s rivers” and “to facilitate the consideration of 
projects on a basis of comprehensive and coordinated de- 
velopment.” 58 Stat. 888. The Act mandated coordination 
between and among the Corps of Engineers, the Bureau of 
Reclamation, and the Secretary of Agriculture (who had 
responsibility for assessing flood effects on soil erosion and 
watersheds) in the investigation, planning, and operation of 
projects. § 1, 58 Stat. 888-889. 

In Section 7 of the 1944 Act, Congress provided specifi- 
cally that multiple-use projects operated by agencies other 
than the Corps be deemed federal flood control projects, and 
that they would be operated for that purpose in a manner 
prescribed by the Corps, pursuant to expressly delegated 
rulemaking authority: 

Hereafter, it shall be the duty of the Secretary of War to 
prescribe regulations for the use of storage allocated for 
flood control or navigation at all reservoirs constructed 
wholly or in part with Federal funds provided on the 
basis of such purposes, and the operation of any such 
project shall be in accordance with such regulations. 

25 

58 Stat. 890. See also H.R. Rep. No. 1309, at 7 (noting that 
such legislation was necessary because “recent experiences 
in the operation of multiple-purpose reservoirs during major 
floods has demonstrated that to assure the expected flood- 
control benefits” such projects should adhere to Corps of 
Engineers flood-control operational rules). The Corps has 
exercised that rulemaking expressly with respect to the 
flood control operations of the Friant Division. See pp. 27- 
30, infra. 

The 1944 Act also specifically recognized the Friant 
Division as a federal flood control project. As was its normal 
practice in those years, Congress adopted the report and 
recommendations of the Corps of Engineers directly in the 
text of the enacted legislation, thereby putting a con- 
gressional imprimatur on the specific findings and policies 
proposed by the Corps. Thus, in addition to the many other 
multiple-use projects authorized in the Flood Control Act of 
1944, Section 10 provided that: “The plan of improvement 
for flood control and other purposes on the Lower San 
Joaquin River and tributaries, including Tuolumne and 
Stanislaus Rivers, in accordance with the recommendations 
of the Chief of Engineers in Flood Control Committee Docu- 
ment Numbered 2, Seventy-eighth Congress, second session, 
is approved, and there is hereby authorized $8,000,000 for 
initiation and partial accomplishment of the plan.” 58 Stat. 
901. 

In Flood Control Document No. 2, in turn, the Corps 
recommended operating the Friant Division as a flood con- 
trol project. See H.R. Comm. on Flood Control Doc. No. 2, 
78th Cong., 2d Sess., San Joaquin River and Tributaries 
(Comm. Print 1944) (Flood Control Doc. No. 2). The Corps 
noted that “[t]he floods of 1937 and 1938 resulted in wide- 
spread damage on the San Joaquin River and its majortribu- 
taries and made evident the necessity for a comprehensive 
plan of control embracing the entire San Joaquin River sys- 
tem.” Id. at 23. It further tabulated data indicating that the 

26 

1937 floods had produced peak natural flow from rain floods 
on the San Joaquin River at Friant of 77,000 cubic feet per 
second (cfs). Id. at 26, Tab. 15. To place that huge volume in 
proper context, the Corps recommended that Friant Dam be 
operated so that no more than 7000 cfs would be released 
into the San Joaquin above Skaggs Branch. Id. at 39, Tab. 

22. Notwithstanding the paucity of economic development 
along the San Joaquin in that era, the Corps estimated that 
the 1937 floods caused flood damage of $1.46 million. Id. at 
32, Tab. 20. 

The massive flooding of 1937-1938 initiated a major re- 
orientation in the thinking of the Corps and Congress. The 
Corps formally recommended a “plan of improvement” for 
the Friant Reservoir [Millerton Lake] “to obtain the maxi- 
mum flood control possible without impairment of irrigation 
yield, i.e., operation in accordance with criteria given in 
paragraph 82,(a).” Flood Control Doc. No. 2, at 35. It is 
apparent that the Corps factored in the use of the Madera 
and Friant-Kern Canals for flood control in its calculations: 
“Present plans provide for gross storage of 520,000 acre-feet, 
inactive storage (below canal outlets) of 130,000 acre-feet, 
and flood outlet capacity exceeding 12,000 cubic feet per 
second before any of the active storage space is occupied.” 
Id. at 35. In calculating the 12,000 cfs flood release from the 
Friant Dam, the Corps expressly noted that only 7000 cfs 
could be released from Friant Dam into the San Joaquin 
River without causing a flood between Skaggs Branch and 
Mendota. See id. at 39, Tab. 22. The capacities of the 
Madera Canal of approximately 1000 cfs and the Friant-Kern 
Canal of approximately 4000 cfs, added to the 7000 cfs 
capacity that the Corps calculated could be safely released 
from the dam into the river, thus accounted for the Corps’ 
conclusion that the project had a “flood outlet capacity 
exceeding 12,000 cubic feet per second.” Ibid. 

In forwarding the Corps’ recommendations to Congress, 
which the 1944 Act subsequently enacted, the Chief of 

27 

Engineers stressed that “[t]he plan also contemplates that 
Friant Reservoir, now under construction as an element of 
the Central Valley project, will be so operated as to afford 
the maximum degree of flood control compatible with its 
primary use for irrigation.” Flood Control Doc. No. 2, at 3. 
The Corps recommended specific design features for the 
project so that the flood control value of the total project 
costs estimated at $3.5 million could be realized. Id. at 45. 
Operated according to plan, “about 82 percent of the total 
average annual flood damage for the period of record would 
be prevented.” Ibid. The 1944 Act and its legislative history 
thus conclusively refute petitioner’s assertion (Br. 40) that 
“there simply is no basis to conclude that Congress con- 
ceived of [the Friant Division] as a ‘flood control project.’” 

C. The Corps of Engineers’ Longstanding And Con- 
sistent Determination That The Friant Division Is A 

Flood Control Project Is Entitled To Deference 

1. In 1955, the Corps of Engineers first promulgated 
regulations pursuant to the delegated rulemaking authority 
of Section 7 of the 1944 Act that governed “the use and 
operation of Friant Dam and Reservoir on San Joaquin 
River, California, for flood control purposes.” 20 Fed. Reg. 
9181. Those rules, which have since been augmented, 
establish three required operational conditions that can only 
be achieved if the Madera and Friant-Kern Canals are used 
for release of flood waters: (1) releases from Friant Dam 
“shall be restricted to quantities which will not cause 
downstream flows to exceed, insofar as possible, * * * 
8,000 cubic feet per second between Friant and Skaggs 
Bridge”; 

13 (2) “[s]torage space in Friant Reservoir [Millerton 
Lake] shall be kept available for flood control purposes in 

13 In its 1944 estimates, which were made prior to completion of 
Friant Dam, the Corps had put this number at 7000 cubic feet per second. 
See Flood Control Doc. No. 2, at 39, Tab. 22. 

28 

accordance with the Flood Control Storage Reservation 
Diagram currently in force,” ibid.; and (3) “[i]n the event that 
the reservoir level rises above elevation 578 at the dam (top 
of spillway gates), subsequent operation of the dam shall be 
such as to cause downstream flows and stages to exceed as 
little as possible the criteria prescribed in paragraph (a) of 
this section,” ibid. While the Corps’ criteria do not expressly 
specify use of the Madera and Friant-Kern Canals, they 
must be used for the release of water in excess of 8000 cfs to 
comply with those rules. Since the issuance of those formal 
rules in 1955, the Corps has included the Friant Division in 
its list of projects operated by other agencies under Corps- 
directed flood control rules pursuant to Section 7 of the 1944 
Act. See 33 C.F.R. 208.11(e). 

14 

14 Even prior to the promulgation of those rules by the Corps, the 
Secretary of the Interior recognized the Friant Division’s important flood- 
control role, reporting to the President in 1947 that “operation of Millerton 
Lake for flood-control purposes will be such as to prevent the maximum 
discharge under the worst flood conditions on the San Joaquin River, 
except one, between 1902 and 1943, from exceeding 8,000 cubic feet per 
second at Skaggs Bridge.” H.R. Doc. No. 146, 80th Cong., 1st Sess. 10-11 
(1947). Similarly, the Interior Department’s 1949 report to Congress on 
the “Central Valley Basin” contained repeated references to the flood 
control function of the CVP’s Friant component. S. Doc. No. 113, at 36 
(referring to “flood-control benefits from works in Sacramento and lower 
San Joaquin Valleys * * * including the benefits from Shasta and Friant 
Reservoirs”); id. at 78 (referring to “flood-control benefits from the 
comprehensive plan, includeing those from the operation of Shasta and 
Friant Reservoirs”); id. at 93 (stating that “Millerton Lake, formed by 
Friant Dam * * * will regulate floods and store San Joaquin River run- 
off for diversion into the Madera and Friant-Kern canals”); id. at 132 
(describing one of the functions of Millerton Lake as “to provide flood 
control on San Joaquin River”); id. at 164 (referring to “additional protec- 
tion” against flooding along the San Joaquin River and in the Sacramento- 
San Joaquin delta provided by “Millerton Lake (Friant) Reservoir”); id. at 
167 (describing future flood control benefits on the San Joaquin River and 
its tributaries “attributable to Friant Reservoir, the various prospective 
reservoirs, channel improvements, and other flood-control works”). 

29 

2. Plans for the Friant Division adopted pursuant to 
those regulations address the operation of the dam and its 
related canals. The Flood Control Storage Reservation 
Diagram referenced in 20 Fed. Reg. at 9181 is Chart A-11 to 
the Friant Flood Report. That Diagram shows generally 
what space should be made available in Millerton Lake for 
various purposes at different times during the average 
water year. From approximately October 1 through August 
1, the Corps requires the Bureau to maintain space in 
Millerton Lake to handle either rain floods (October 1 to 
March 15) or snow-melt runoff (March 15 to July 31). 
According to the Flood Control Diagram, “[w]ater stored in 
rainflood space shall be released as rapidly as possible 
without exceeding 8,000 cfs below Little Dry Cr[eek] or 
6,500 cfs at the near Mendota gage.” Friant Flood Report 
Chart A-11. Similarly, during the period of snow-melt 
runoff, implementation of the Diagram requires that space 
referred to as “conditional space” be reserved to meet the 
dual needs of accommodating flood water and providing 
water for irrigation. “When water is stored in the portion of 
conditional space required for flood control, a supplemental 
release in addition to irrigation demand must be made.” 
Ibid. The Corps calculates the current maximum initial 
capacity of the Madera Canal as 1200 cfs, declining to 625 cfs 
at the canal’s terminus at the Chowchilla River, and of the 
Friant-Kern Canal as 4500 cfs declining gradually to 2000 at 
its terminus. Id. at 11. As a general matter, flood releases 
into the Madera and Friant-Kern Canals because of rain 
floods occur from December until April, when irrigation 
demand is low. Thereafter, melting snow is the primary 
source of flood releases into the canals. Such flood releases 
may coincide with or far exceed irrigation needs. See pp. 37- 
40, infra. 

The Corps’ determination, through rulemaking, that the 
Friant Division operates as a flood control project is entitled 
to this Court’s deference. Chevron U.S.A. Inc. v. Natural 

30 

Resources Defense Council, Inc., 467 U.S. 837, 842-844 
(1984); accord Christensen v. Harris County, 120 S. Ct. 1655, 
1662 (2000). 

15 

D. Petitioner’s Reliance On Gerlach Is Misplaced 

Petitioner erroneously contends (Br. 35-40) that this 
Court’s decision in United States v. Gerlach Live Stock Co., 
339 U.S. 725 (1950) (Gerlach), establishes that Section 702c 
does not apply here because the Friant Division is a 
reclamation project and not a flood control project. In 
Gerlach, property owners downstream from Friant Dam 
who had rights to the waters of the San Joaquin River had 
obtained awards from the court of claims for takings caused 
by the dam’s restriction of the river’s flow. Challenging 
those awards, the United States argued in this Court that it 
was not liable for any such takings because the authorized 
purposes of the CVP as a whole included flood control and 
navigation. The theory behind the government’s reading of 
the applicable statutes was that those purposes supported a 

15 The fact that the structures authorized in the Flood Control Act of 
1928 to control floods on the Mississippi River may not have included the 
kind of multiple-use projects later undertaken in the Western states and 
in other parts of the country (see Pet. Br. 14 n.4) does not undercut the 
application of Section 702c to such projects. The courts of appeals have 
consistently held since long before James, and petitioner does argue to the 
contrary, that Section 702c applies to flood control projects authorized by 
separate statutes that succeeded the 1928 Act. See Aetna Ins. Co. v. 
United States, 628 F.2d 1201, 1204 (9th Cir. 1980), cert. denied, 450 U.S. 
1025 (1981); Lenoir v. Porters Creek Watershed Dist., 586 F.2d 1081, 1086 
& n.4 (6th Cir. 1978); cf. National Mfg. Co., 210 F.2d at 270. The direct 
link between the Flood Control Act of 1928 and Congress’ subsequent 
enactments in the area of flood control supports the longstanding inter- 
pretation of Section 702c to apply to projects in addition to those author- 
ized in the 1928 statute. See Flood Control Act of 1936, ch. 688, § 8, 49 
Stat. 1596 (specifically saving all provisions of the 1928 Act); Flood Control 
Act of 1944, ch. 665 § 2, 58 Stat. 889 (referencing the 1936 Act). See also 
James, supra (applying Section 702c to project authorized under the Flood 
Control Act of 1946, ch. 596, 60 Stat. 647). 

31 

“superior navigation easement” that superseded the 
interests of the water rights owners in downstream riparian 
rights. 339 U.S. at 736. 

In disagreeing with that position, this Court held that 
Congress intended to compensate owners of water rights. 
The Court explained that Congress had made the Friant 
Division subject to federal reclamation law, which requires 
recognition of all vested rights under state law, including 
water rights. 339 U.S. at 734-736. The Court also noted 
that, prior to that litigation, the Bureau of Reclamation had 
consistently respected the water rights of land owners 
affected by reclamation projects by, inter alia, requesting 
appropriations to purchase such rights. Id. at 735 & n.9. 

The Court did not decide in Gerlach that because the 
Friant Division is a reclamation project, it is therefore not a 
flood control project. Indeed, the Court noted that under a 
formula “approved by the President, * * * multiple 
purpose dams [in the CVP] are the responsibility of the 
Bureau of Reclamation,” whereas “dams and other works 
only for flood control are exclusively the responsibility of 
the Army Engineers.” 339 U.S. at 733-734 (emphasis added). 
Thus, by concluding that the Friant Division is a reclamation 
project subject to the reclamation laws, the Court simply 
acknowledged that flood control is not its sole purpose. 
Gerlach does not hold, or even suggest, that the Friant 
Division is not a “flood control project” as this Court used 
those words in James. 

16 In any event, even if Gerlach could 

16 Petitioner places significance (Br. 38) on the statement in Gerlach 
that “[t]he Central Valley basin development envisions, in one sense, an 
integrated undertaking, but also an aggregate of many subsidiary pro- 
jects, each of which is of first magnitude.” 339 U.S. at 733. In the context 
of that case, however, the Court’s reference to treating the subdivisions of 
the CVP as each of “first magnitude” is most naturally understood to 
mean that Congress had specifically directed that the reclamation laws 
apply to the Friant Division. The Court in Gerlach did not address how 
such a focus on the CVP’s “subsidiary projects”—here, the Friant 

32 

be read as petitioner urges, the Corps of Engineers deter- 
mined five years later that the CVP’s Friant Division is a 
federal flood control project pursuant to its delegated 
rulemaking authority under the Flood Control Act of 1944. 
See 20 Fed. Reg. at 9181. 

III. THE MADERA CANAL CARRIES WATERS 
RELATED TO FLOOD CONTROL WITHIN THE 

MEANING OF JAMES 

Petitioner argues (Br. 23) that “flood waters” are distinct 
from “irrigation water,” and that only the latter flowed 
through the Madera Canal, allegedly damaging petitioner’s 
property. The fact that water may be put to beneficial uses 
—such as irrigation—does not preclude it from being “flood 
water” within the meaning of Section 702c. In James, this 
Court provided a simple, functional definition for that term. 
Water in a federal flood control project is “flood water” if it 
is carried through the project “for purposes of or related to 
flood control” or if it is “water[] that such [a] project[] cannot 
control.” 478 U.S. at 605. The water in the Madera Canal 
meets both alternative facets of that definition. 

17 

Division—would affect the application of Section 702c. We have shown, 
however, that flood control is a central purpose of the Friant Division, so 
even an enquiry focused on that component of the CVP would not 
undercut application of the immunity here. 

17 Petitioner’s complaint asserts only that the Madera Canal is used 
for irrigation purposes, and not that its exclusive use is for irrigation. See 
J.A. 8. Thus, accepting the allegations as true does not foreclose the 
government’s defense that the canal also carries flood waters, or that the 
irrigation waters also serve a flood control function. In any event, even if 
the complaint is liberally construed in petitioner’s favor, the government 
is entitled to judgment on the pleadings when “it appears beyond doubt 
that the plaintiff can prove no set of facts in support of his claim which 
would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A 
court may take judicial notice of matters of public record—such as 
statements in judicial opinions, regulatory documents, and historical 
records—that refute the allegations in the complaint. See, e.g., Papasan 

33 

A. Waters Released Into Madera Canal Cannot Be 

Segregated Into “Flood” And “Irrigation” Waters 

The Flood Control Diagram for Friant Dam shows that, 
during most of the year (October through July), Millerton 
Lake stores water both to control floods and to meet 
irrigation needs. Friant Flood Report App. A, Chart A-11. 
Water can be released from the reservoir in three ways: (1) 
through the canals, (2) through outlets in the dam that send 
water down the river, and (3) over the dam’s spillway, which 
likewise sends water down the river. Id. at 15. Discharges 
to serve the respective demands of flood control and 
irrigation are made from a single, undifferentiated body of 
water behind the dam—Millerton Lake. As an empirical 
matter, it is not true that the quantity of water released 
down the river always at least equaled the total quantity 
that the Flood Control Diagram requires to be released to 
create the necessary storage space for flood control. See pp. 
37-40, infra. Even if that were not so, it would be 
unreasonable to regard every drop of “flood water” as going 
down the river (see Pet. Br. 25) and, concomitantly, all water 
flowing into the Madera Canal as consisting purely of 
“irrigation water.” Petitioner’s theory misperceives the 
Friant Division’s operations in practice and the historical 
record of releases of water into the irrigation canals. 

Between 1873 and 1979, the annual flows below Friant 
varied widely, with a low of 361,500 acre-feet (representing 
approximately 60 percent of Millerton Lake’s storage capac- 
ity) in 1977 to a high of 4,367,800 acre-feet in 1906 (meaning 
that the reservoir would have been filled and emptied more 

v. Allain, 478 U.S. 265, 268 n.1 (1986) (in reviewing motion to dismiss 
under Fed. R. Civ. P. 12, “we are not precluded in our review of the 
complaint from taking notice of items in the public record”); Bowen v. 
Johnston, 306 U.S. 19, 23 (1939); Lamar v. Micou, 114 U.S. 218, 223 (1885); 
Menominee Indian Tribe v. Thompson, 161 F.3d 449, 455-462 (7th Cir. 
1998), cert. denied, 526 U.S. 1066 (1999). 

34 

than eight times during the course of the year). The mean 
annual unimpaired flow for that period is 1,790,700 acre-feet, 
which is three-and-one-half times the storage capacity of the 
reservoir. See Friant Flood Report Chart 5. Thus, except in 
the most severe drought years, the waters stored to prevent 
floods behind Friant Dam are transferred to the canals 
(during the course of the year) for both flood control and 
irrigation purposes in a manner that is impossible to 
segregate. Releases for irrigation in high flow years also 
serve a flood control purpose, and water released for flood 
control may be stored by irrigators for later irrigation use or 
to recharge ground water. That type of multiple-use was 
precisely what Congress intended for the project. See pp. 7, 
24-25, supra. 

To characterize the water carried through the Madera 
Canal as “related to flood control” (James, 478 U.S. at 605) is 
thus hardly “metaphysical,” as petitioner asserts (see Br. 

12). Rather, that label better describes petitioner’s concep- 
tion that dammed water in a reservoir can somehow be 
legally distilled into “irrigation” molecules and “flood con- 
trol” molecules. Water is stored and released when and 
where it can best achieve the multiple purposes of the 
project. If a flood can be avoided by releasing water into the 
canals, that water does not lose its character as flood waters, 
and the government does not lose its immunity, merely 
because the government has arranged to provide some of 
that water to irrigators. 

18 Moreover, petitioner’s insistence 

18 Petitioner seemingly acknowledges that some of the water that 
flowed through the Madera Canal was stored in Millerton Lake for the 
purpose of controlling floods. See Br. 8 (“[a] large proportion of the 
waters that damaged Petitioner were not ‘flood waters’ even when 
originally stored behind Friant Dam”) (emphasis added); id. at 22 (“a large 
proportion of the water that has damaged Petitioner’s farm has no 
relationship to flood control at all”) (emphasis added); id. at 23 (“a still 
much smaller proportion of the contents of the Madera Canal could 

35 

that the beneficial use of stored water—here for irrigation— 
deprives it of legal status as “flood water” is inconsistent 
with James. The Court held there that Section 702c applied 
to damages to recreational users of federal flood control 
lakes who were dragged through dam gates when water was 
being released for flood control purposes. According to 
petitioner, “James indicates that [Section 702c] encompasses 
waters originally stored and later diverted for purposes of 
flood control notwithstanding that in the interim they may 
have provided incidental benefits, including recreational 
activities such as boating.” Br. 19. That reasoning is unper- 
suasive. First, it erroneously assumes that a singular pur- 
pose can be ascribed to water in a multiple-use project. 
Second, there is no basis for petitioner’s apparent position 
that water in a federal flood control lake retains its character 
as “flood water” if its beneficial use precedes its release from 
the dam, but not when its beneficial use follows such release. 
Moreover, a single release may accomplish two purposes 
concurrently; the flood control benefit of a release for irriga- 
tion may rest in increasing storage capacity for an antici- 
pated flood. Finally, the allegations in petitioner’s complaint 
in any event do not require the Court to make such a fine 
distinction, because the leaks resulting from long-term, 
structural damage asserted by petitioner cannot be ascribed 
to a single purpose of the project. 

B. The Madera Irrigation District Contract Expressly 

Provides For Flood Water To Be Released Into 

Madera Canal 

Because of the highly-variable water supply that flows 
into Millerton Lake, the Bureau of Reclamation has entered 
into contracts reflecting the historical reality that flood 
waters must be diverted into the Madera and Friant-Kern 

include those waters,” referring to waters stored behind the dam that 
could otherwise have caused flooding) (emphasis added). 

36 

Canals to optimize the multiple-use objectives of the project. 
The contract with the Madera Irrigation District, for ex- 
ample, defines Class 1 water as “a dependable water supply 
during each Year” and Class 2 water as “undependable in 
character and will be furnished only if, as, and when it can be 
made available as determined by the [Bureau of Re- 
clamation].” Interim Renewal Contract Between the United 
States and Madera Irrigation District Providing for Project 
Water Service (MID Contract), Art. 1(c) and (d). Class 2 
water is “available for irrigation purposes during spring 
months of wet years,” Friant Flood Report 14 n.2, because it 
is “necessary to evacuate Project Water from Millerton Lake 
to prevent or minimize a spill or to meet flood control 
criteria,” MID Contract, Art. 3(h)(1). 

19 

The price charged for Class 1 water historically has been 
at about twice the rate charged for Class 2 water. Because of 
its undependable character, Class 2 water may be delivered 
at times that are inconvenient to all members of the 
irrigation district, but whose individual members nonethe- 
less may wish to purchase that water to store it for later use, 
to recharge groundwater supplies, or to irrigate in off-peak 
periods. Article 3(h)(1) of the MID Contract specifically 
provides for the contingency of flood releases as Class 2 
water: “If, during the months of March through September, 
the [Bureau of Reclamation official] determines it will be 
necessary to evacuate Project Water from Millerton Lake to 
prevent or minimize a spill or to meet flood control criteria, 
he may establish” periods of time in which irrigators may be 
obligated to purchase Class 2 water. 

19 In the district court petitioner stipulated to the fact that “[t]he 
United States entered into an agreement with [Madera Irrigation District 
(MID)] whereby MID was allowed to flow water through the Madera 
Canal on the terms and conditions specifically set forth in the agreement.” 
J.A. 72; see also J.A. 81 (scheduling conference order confirming factual 
stipulation). We have lodged copies of this contract with the Clerk. 

37 

Precisely because the availability of flood waters typically 
begins in the months immediately preceding the irrigation 
season, the contract provides incentives for the Madera 
Irrigation District to purchase Class 2 flood water by obli- 
gating it either to pay for such water released into the 
Madera Canal or to forfeit a certain percentage right to 
purchase Class 2 water at a later date. Thus, if the irrigation 
contractor does not purchase flood waters released into the 
Madera Canal in March, the contract provides for forfeiture 
of up to 7% of the total Class 2 water supply it has con- 
tracted to purchase for that year. Unpurchased Class 2 flood 
water in April may lead to forfeiture of 12% of the 
contractor’s Class 2 total annual water supply, with the 
percentage rising to 16% for unpurchased Class 2 supply for 
May, and to 20% for “any other month.” MID Contract, Art. 
3(h)(3). Flood water released into Madera Canal that is 
unpurchased as Class 2 water simply flows through the canal 
and is ultimately released into the Fresno and/or Chowchilla 
Rivers. The contractual arrangement requires irrigators to 
accept flood water in the canal, thereby demonstrating that 
the irrigation purpose of the Madera Canal must coexist 
with, and at times be subordinate to, the flood control pur- 
pose of the facility. 

C. The Madera Canal Receives Water Intended Solely 

For Flood Control Purposes 

1. In addition to the dual flood control and irrigation 
purposes that may be served simultaneously by water re- 
leases into the Madera and Friant-Kern Canals, releases 
serve solely a flood control function in periods of high water 
flow or when capacity in Millerton Lake must be made 
available for anticipated inflows. Without citation to any 
authority, petitioner asserts (Br. 25) that all flood releases 
from Friant Dam automatically are made into the San 
Joaquin River. The 1999 Corps report, however, conclu- 
sively refutes that assertion: “Typically, during high snow- 

38 

melt the Madera Canal can be used to convey up to 1,200 cfs 
into the Fresno-Chowchilla River system.” Post-Flood 
Assessment 3-32. That report notes some of the important 
discretionary considerations that the Corps and Bureau 
must take into account that influence a decision to release 
flood water not intended for irrigation into the Madera and 
Friant-Kern Canals. Even when a release of water down- 
stream could be made without exceeding the maximum 
release level of 8000 cfs, for example, the Bureau (pursuant 
to Corps’ rules) releases flood waters into the canals for 
other reasons, including to ensure safer recreational usage of 
the San Joaquin, to protect areas downstream, to avert 
flooding downstream just below Friant Dam, and to avoid 
flooding at the Mendota Dam. Id. 3-32 to 3-33. Releases into 
the Madera Canal serve those purposes even when down- 
stream releases would not exceed 8000 cfs. Id. at 3-33. 

Petitioner thus erroneously describes the Field Working 
Agreement between the Corps and the Bureau as “establish- 
[ing] that a substantial proportion of the water that damaged 
Petitioner’s farm has no relationship to flood control 
whatsoever” and in requiring releases “only into the river 
bed, not the Madera Canal.” Br. 25. Petitioner cites nothing 
in the agreement itself to support those assertions, and the 
foregoing description of the operations of the Friant Division 
is consistent with the proposal made by the Corps that was 
adopted by Congress in 1944, the Corps’ implementing regu- 
lations in 1955, and more than four decades of experience of 
flood control operations in the Friant Division. 

2. The history of water releases from Friant Dam, as 
documented by publicly-available data from the U.S. Geo- 
logical Survey, also supports the conclusion that the Madera 
and Friant-Kern Canals are routinely used for flood releases, 
except in the most severe drought years. As of 1980, 
according to the Corps of Engineers, 138,000 acre-feet of 
water each year is released into the Madera Canal to meet 

39 

20 Dur- 
ing the twenty-year period between 1979 and 1999, however, 
the amount of acre-feet of water released annually into the 
Madera Canal well exceeded the 138,000 acre-feet intended 
predominantly for irrigation use (Class 1 water) in every 
year except the severe drought years of 1989-1990 (111,757 
acre-feet) and 1991-1992 (126,750 acre-feet). 

21 In all other 
years (18) of that twenty-year period, the amount of water 
released into the Madera Canal exceeded the amount dedi- 
cated predominantly for irrigation. Moreover, in eleven of 
those eighteen years, the amount of water released was far 
greater than the amount needed to meet irrigation obli- 
gations by the Bureau of Reclamation. 

22 Nor were the years 
in those two decades anomalous. Based on a calculation of 
the mean total acre-feet per month released into the Madera 
Canal between 1949 and 1999, the total yearly mean released 
in those years was 264,740 acre-feet, or approximately 

20 “Class 1” water is that amount of water the irrigators can rely on 
the Bureau to deliver except in the most severe drought years. As such, 
the government commits to supplying at least that amount of water each 
year to irrigators. Any other water supplied is conditional upon flood 
flows. See Friant Flood Report 14 n.1; see also MID Contract, Art. 1(c). 

21 The U.S. Geological Survey monitors water releases throughout 
California (and elsewhere in the country). All of the data cited in the text 
and notes is compiled from historical stream flow data for releases from 
Friant Dam to the Madera Canal monitored at Gaging Station No. 
11249500, which is available on the U.S. Geological Survey web site 
<<http://water.wr.usgs.gov/index.html>>. 

22 The following data, based on adding the monthly totals available 
from USGS, are total acre-feet of water per year released into the Madera 
Canal: 1979-1980 (483,660); 1981-1982 (456,440); 1982-1983 (532,600); 1983- 
1984 (340,450); 1985-1986 (513,030); 1992-1993 (390,310); 1994-1995 
(389,110); 1995-1996 (363,380); 1996-1997 (391,980); 1997-1998 (355,290); and 
1998-1999 (323,150). Thus, even if one were to assume that the 138,000 
acre-feet per year released for Class 1 irrigation water supply has had no 
relation whatsoever to flood control, most of the water released in those 
years had a flood control purpose. E.g., 1979-1980 (483,660 - 138,000 = 
345,660 acre-feet). 

requirements for supplying Class 1 irrigation water. 

40 

double the amount of water dedicated predominantly for 
irrigation purposes. Indeed, contrary to petitioner’s undocu- 
mented assertion that “a large proportion of the water that 
has damaged Petitioner’s farm has no relationship to flood 
control at all” (Br. 22), data collected from the past twenty 
years establish that more water has been released into the 
Madera Canal for flood control purposes than for pre- 
dominantly irrigation purposes. 

23 

The Court thus need not go beyond the test it articulated 
in James to resolve this case. All parts of the CVP and its 
Friant Division, including the Madera Canal, operate as a 
federal flood control project, and the waters that allegedly 
escaped from the canal and damaged petitioner’s property 
both had a direct relationship to flood control and constituted 
waters that the project could not control. Petitioner simply 
misapprehends (Br. 19) the practical operation of the Friant 
Division as demonstrated by statutory requirements, regu- 
latory implementation, and historical practice when assert- 
ing that “the Madera Canal has at most an exceedingly 
attenuated relationship to flood control activities.” 

IV. PETITIONER’S PROPOSAL TO LIMIT SEC- 
TION 702c TO DAMAGES CAUSED BY PRO- 
JECTS WITH A PRIMARY PURPOSE OF 
FLOOD CONTROL IS FLAWED 

Petitioner proposes a new test for Section 702c immunity: 
“[W]hether the waters [causing the damage] were carried in 
a flood control project ‘primarily for the purpose of flood 
control.’ ” Br. 19. Until its brief on the merits in this Court, 
petitioner had not advanced that position in this litigation; it 

23 Between 1979 and 1999, a total of 5,965,161 acre-feet of water has 
been released into the Madera Canal. Assuming the figure of 138,000 
acre-feet of Class 1 water per year, the total amount of water released to 
serve a predominantly irrigation purpose was 2,760,000 acre-feet. The 
remainder—3,205,161 acre-feet—was water that served a flood control 
purpose. 

41 

had instead argued that “for water to be ‘flood water’ it 
would have to (1) pass through a flood control project and 
(2) be for the purposes of or related to flood control.” Pet. 
App. 3. Petitioner’s new approach, which has not been 
adopted by any court of appeals, is flawed. 

A. The “Primary Purpose” Test Conflicts With The Text 

Of Section 702c As Construed In James 

1. Petitioner argues that its “primary purpose” test is 
the “most consistent with Congress’ intent.” Br. 19. As this 
Court recognized in James, however, the “starting point” for 
determining that intent is “the language of the statute 
itself.” 478 U.S. at 604 (quotation omitted). In James the 
Court emphasized the “sweeping terms” of Section 702c, 
noting the statute’s reference to “ ‘[n]o liability of any kind 

* * * for any damage from or by floods or flood waters at 
any place.’ ” Ibid. (quoting Section 702c). As the Court 
recognized, “[i]t is difficult to imagine broader language.” 
Ibid. That language, and the “equally broad and emphatic 
language found in the legislative history,” showed that 
“Congress clearly sought to ensure beyond doubt that 
sovereign immunity would protect the Government from 
‘any’ liability associated with flood control.” Id. at 608. Far 
from being the “most consistent” (Pet. Br. 19) with that 
intent, petitioner’s reading of Section 702c would considera- 
bly narrow the broad immunity set forth in the statutory 
language and recognized in James. 

2. Petitioner cites other statutory provisions that osten- 
sibly would be affected by a failure of this Court to adopt 
petitioner’s approach. See Pet. Br. 11-12 & n.2 (discussing 33 
U.S.C. 702j-2), 14-16 (discussing 33 U.S.C. 702j). By their 
plain terms, however, those statutory references are inappo- 
site. 

Petitioner cites (Br. 12) 33 U.S.C. 702j-2, for example, 
which was enacted in 1936 as a specific immunity provision 
for the White River Levee District. The provision afforded 

42 

immunity from any damages—whether caused by flooding 
or not—“on account of the use of said area [both submerged 
and unsubmerged land] for reservoir purposes during said 
emergency.” 33 U.S.C. 702j-2, Act of June 15, 1936, ch. 548, 
§ 5, 49 Stat. 1509. That provision does not amend or limit 
Section 702c in any way, and its distinctive scope and pur- 
poses are hardly rendered “superfluous” (Pet. Br. 12) by 
rejection of petitioner’s newly proposed “primary purpose” 
test. 

Petitioner is similarly mistaken in asserting (Br. 14-16) 
that 33 U.S.C. 702j provides support for the “primary pur- 
pose” test. That provision, which was enacted in 1928, di- 
rected the Corps of Engineers to submit plans to Congress 
for flood control projects on tributaries to the Mississippi 
River and to report on the possible beneficial effects of 
building a system of reservoirs on those tributaries. 33 
U.S.C. 702j. Petitioner points out that Congress referred in 
Section 702j to waters, once they were contained in re- 
servoirs, as “reservoired waters.” According to petitioner, 
Congress thus must have meant to distinguish “reservoired 
waters” in Section 702j from “flood waters” in Section 702c, 
and specifically must have intended the latter term to 
exclude “waters stored and then diverted for some beneficial 
purpose other than flood control.” Br. 14 (emphasis added). 

Petitioner’s suggested dichotomy between “reservoired 
waters” and “flood waters” goes too far, however, because 
flood control dams accomplish all of their beneficial pur- 
poses, including flood control, by converting the entire flow 
of the river into “reservoired waters.” Temporary storage of 
water in reservoirs permits its use for recreation, irrigation, 
power generation, and the prevention of floods. Indeed, in 
James the Court found that the government’s immunity 
under Section 702c applied to damage from reservoired 
waters that had been used for recreational purposes. In 
James, as here, reservoired waters serving multiple uses 
were released “to prevent flooding.” 478 U.S. at 605-606 n.7. 

43 

To distinguish James, petitioner must ask the Court to hold 
that water entering a reservoir as “flood water” retains that 
character if it is put to recreational uses, but not if it is used 
for irrigation, or perhaps to hold that immunity is defeated 
by beneficial use apart from flood control after release from 
the reservoir but not by such non-flood beneficial use before 
release. Those distinctions should be rejected. They have no 
relationship to the purpose of the immunity in facilitating 
federal investment in flood control projects by shielding the 
United States from liability for damages caused by flood 
waters in these projects. 

Petitioner also invokes the Federal Tort Claims Act 
(FTCA), 28 U.S.C. 2671 et seq., to support its proposed 
“primary purpose” test, but James definitively rebuts that 
argument. Petitioner points out (Br. 16-18) that Congress 
considered, and failed to enact, exceptions to the FTCA that 
would have explicitly covered flood control and irrigation 
projects. The result, according to petitioner (Br. 18), is that 
negligent operation of federal flood control projects is 
excluded from the FTCA’s waiver of sovereign immunity 
only if the negligent conduct is within the scope of the 
FTCA’s “discretionary function exception.” 28 U.S.C. 
2680(a). If that were so, however, the Court in James would 
have had to determine first whether the negligence alleged 
in that case was within the discretionary function exception. 
The Court did not do so, but instead assumed that the 
alleged government negligence fell outside the scope of any 
exception to the FTCA: “This case presents the question 
whether [Section 702c] * * * bars recovery where the 
Federal Government would otherwise be liable under the 
Federal Tort Claims Act.” 478 U.S. at 598-599 (emphasis 
added). By determining that Section 702c immunity applied 

44 

to such a case, the Court held that the FTCA did not amend 
or displace Section 702c. 

24 

B. Petitioner’s “Primary Purpose” Test Finds No 

Support In Court Of Appeals’ Decisions 

The “primary purpose” test petitioner now proposes has 
not been adopted by any court of appeals in the wake of 
James. See notes 26 & 27, infra. Nor would petitioner 
prevail (see Pet. 18, Pet. Reply 1) under the approaches that 
have been adopted by other circuits. See Br. in Opp. 11-16. 
Contrary to petitioner’s suggestion (Br. 7), Henderson v. 
United States, 965 F.2d 1488 (8th Cir. 1992), did not articu- 
late a “primary purpose” test. On the contrary, the court of 
appeals in Henderson stated that “section 702c immunity 
applies if ‘governmental control of flood waters was a sub- 
stantial factor in causing [the plaintiff ’s] injuries.’ ” 
Id. at 

1492 (quoting Dewitt Bank & Trust Co. v. United States, 878 
F.2d 246, 247 (8th Cir. 1989), cert. denied, 494 U.S. 1016 
(1990)) (emphasis added). The Eighth Circuit rejected im- 
munity not because flood control was “the primary purpose” 
of the project in question (which was power generation), but 
rather because flood control was not even a substantial 
factor in causing the injury. 

25 

24 Not only did this Court reject that argument in James, but every 
court of appeals to consider that contention prior to James had also 
rejected it. See, e.g., Aetna Ins. Co., 628 F.2d at 1204-1205; Callaway v. 
United States, 568 F.2d 684 (10th Cir. 1978); Florida E. Coast Ry. v. 
United States, 519 F.2d 1184 (5th Cir. 1975); Parks v. United States, 370 
F.2d 92 (2d Cir. 1966); Stover v. United States, 332 F.2d 204 (9th Cir.), cert. 
denied, 379 U.S. 922 (1964); National Mfg. Co. v. United States, 210 F.2d 
263 (8th Cir.), cert. denied, 347 U.S. 967 (1954). 

25 The Henderson court used language more akin to the “wholly 
unrelated” test: “We do not believe that section 702c bars Henderson’s 
cause of action in this case because the dam activity here was related to 
generating electricity and not to flood control.” 965 F.2d at 1492. The 
Corps of Engineers released the water that caused Henderson’s death on 
the order of an electric utility, which under a contract with the United 
States had the prerogative to make such a request of the Corps. Ibid. The 

45 

Unlike the “primary purpose” test advanced by peti- 
tioners, the courts of appeals have not inquired into whether 
the government’s flood control activities were the proximate 
cause of the damages. Rather, courts have examined the 
factual allegations of the complaint to determine whether 
they describe a connection between the damages and flood 
control. Most often, as here, that determination can be made 
on the pleadings alone. Where the relation between the 
injury and flood control has been absent, courts have denied 
immunity. 

26 Virtually every circuit, however, also has 
issued a reported decision in which a district court judgment 
dismissing the complaint has been affirmed because the 
factual relation to flood control is sufficiently evident from 
the pleadings to justify the government’s immunity under 

precise claim involved a failure by the Corps to warn recreational users of 
rapidly rising water levels when water was released from the dam. Id. at 
1491. As the court made clear, its rationale rested not on the “primary 
purpose” of the project or the discharge, but rather on the ground that the 
court could not “conclude that ‘governmental control of flood waters was a 
substantial factor in causing [Robert Henderson’s] injuries.’ ” 
Id. at 1492 

(citation omitted). 

26 See Kennedy v. Texas Utils., 179 F.3d 258 (5th Cir. 1999) (no 
immunity where injury occurred on dry land due to a condition with no 
association to flood control); Cantrell v. United States, 89 F.3d 268 (6th 
Cir. 1996) (no immunity from claim by recreational boater injured by 
allegedly negligent driver of Army Corps of Engineers’ boat); Henderson 

v. United States, 965 F.2d 1488 (8th Cir. 1992) (no immunity in death of 
fisherman where drowning was caused by release of water, at direction of 
private power company, from dam operated for hydroelectric power 
generation); Boyd v. United States, 881 F.2d 895 (10th Cir. 1989) (no 
immunity for allegedly negligent failure to warn swimmers of hazard from 
boats, in death of snorkeler struck by privately operated power boat at 
flood control lake); E. Ritter & Co. v. Department of the Army, 874 F.2d 
1236 (8th Cir. 1989) (no immunity for erosion caused by rain waters that 
had not yet come in contact with flood control project); see also Williams 

v. United States, 957 F.2d 742 (10th Cir. 1992) (concluding, on basis of 
record evidence and language of authorizing statute, that particular 
project was not a flood control project). 

46 

27 For that reason, and those stated in Parts II 
and III, the judgment dismissing petitioner’s complaint 
would have been uniformly affirmed by the courts of appeals. 

C. The “Primary Purpose” Test Would Deny The Govern- 
ment Flood Immunity In Cases Involving Multiple- 
Use Projects 

Adoption of the “primary purpose” test proposed by peti- 
tioner would sharply limit the immunity created by Section 
702c. Petitioner’s test casts doubt on whether the projects 

27 Reese v. South Fla. Water Management Dist., 59 F.3d 1128, 1130 
(11th Cir. 1995) (per curiam) (government immune from suit in drowning 
at federal flood control lake caused by opening of water control device, 
noting that “periodic release of water is fundamental to the operation of a 
flood control project”); Boudreau v. United States, 53 F.3d 81, 84 (5th Cir. 
1995) (based on facts of case, government immune from suit where there 
was a “sufficient association” between injury to recreational boater during 
Coast Guard rescue and activities of flood control), cert. denied, 516 U.S. 
1071 (1996); Holt v. United States, 46 F.3d 1000, 1004 (10th Cir. 1995) 
(government immune from suit where there was a “sufficient nexus” 
between car accident and mist, which was created by water released from 
flood control project’s dam and which caused an ice slick on an adjacent 
road); Fisher v. United States Army Corps of Engineers, 31 F.3d 683, 685 
(8th Cir. 1994) (government immune from suit where shallow level of 
water as a result of operation of flood control project was a “substantial 
factor” in a recreational diving accident); Thomas v. United States, 959 
F.2d 232 (4th Cir. 1992) (Table) (government immune from suit in 
recreational diving accident occurring at lake which, despite its com- 
mercial uses, had flood control uses as well and which was “monitored and 
maintained daily by the Army for the purpose of controlling floods”); 
Fryman v. United States, 901 F.2d 79, 82 (7th Cir.) (government immune 
from suit for injuries sustained at lake created as part of a flood control 
project which “increase[d] the probability” of injury), cert. denied, 498 
U.S. 920 (1990); Dawson v. United States, 894 F.2d 70, 74 (3d Cir. 1990) 
(government immune from suit for recreational swimming accident caused 
by unsafe depth of water due in part to releases of water for flood control 
purposes); Mocklin v. Orleans Levee Dist., 877 F.2d 427, 430 (5th Cir. 
1989) (government immune from suit for drowning caused by deep water 
in a flotation channel that had been excavated for a flood control project). 

Section 702c. 

47 

designated as flood control projects by the Corps of En- 
gineers pursuant to Section 7 of the Flood Control Act of 
1944 (see 33 C.F.R. 208.11(e)) would be covered by Section 
702c. 

28 Indeed, under petitioner’s view, no part of the 
Central Valley Project, which is owned and operated by the 
Bureau of Reclamation, would qualify for flood immunity, 
since it was expressly authorized by Congress to be a 
multiple-use project and Congress did not specify that flood 
control was the project’s “primary purpose.” See p. 7, supra. 
Petitioner’s rule thus threatens to erase decades of settled 
law. 

29 Only projects owned and operated by the Corps itself 
would likely have flood control as their primary purpose and, 
even as to those, a congressional mandate that such projects 
also serve multiple uses would introduce uncertainty into the 
scope of immunity. 

Petitioner asserts (Br. 21) that its “primary purpose” test 
promises “ease of administration,” but that contention is 
incorrect. On the contrary, it would require courts to calibr- 
ate precisely the respective purposes served by multiple-use 
projects, a task that Congress itself does not undertake 
when it authorizes such projects or when it subsequently 
amends an original authorizing statute. 

30 Even if petitioner’s 

28 That regulation lists 112 projects operated by entities other than 
the Corps for a variety of purposes. By law those projects must follow the 
regulations promulgated by the Corps. See 33 C.F.R. 208.11(e) (Table). 

29 Not only has the Ninth Circuit consistently held that multiple-use 
projects operated by agencies other than the Corps of Engineers are 
entitled to flood immunity, see, e.g., Aetna Ins. Co., supra; Morici, supra; 
but other courts have likewise upheld flood immunity for multiple-purpose 
projects operated by the Corps, the Bureau, and the Soil Conservation 
Service. See, e.g., Lenoir, 586 F.2d at 1084; Taylor v. United States, 590 
F.2d 263 (8th Cir. 1979); Callaway v. United States, 568 F.2d 684 (10th 
Cir. 1978); Hedrick v. United States, 184 F. Supp. 927 (D.N.M. 1960). 

30 The following are examples of statutes that specify multiple pur- 
poses of projects, including flood control, without indicating any priority 
among the purposes specified: Act of Sept. 20, 1966, Pub. L. No. 89-596, 80 
Stat. 822 (Scoggins Dam); Act of Aug. 24, 1962, Pub. L. No. 87-594, 76 Stat. 

48 

proposed test were limited to cases involving releases of 
water from federal flood control reservoirs, it would still in 
many instances require courts to establish priorities among 
multiple purposes without any evidence that Congress 
ranked their relative importance. As the court in Morici 
concluded, “it is very difficult, if not impossible, as a practical 
matter to segregate particular . . . water releases into 
precise categories of purpose; a single release may well 
serve multiple purposes, just as the project itself serves 
multiple purposes.” 681 F.2d at 648 (quotation omitted). 
Furthermore, petitioner’s proposed test would require 
complex evidentiary showings that Congress could not have 
intended when it enacted Section 702c to “ensure beyond 
doubt that sovereign immunity would protect the Govern- 
ment from ‘any’ liability associated with flood control.” 
James, 478 U.S. at 608. 

31 Petitioner’s approach also 

395 (Arbuckle Dam); Act of June 3, 1960, Pub. L. No. 86-488, 74 Stat. 156 
(B.F. Sisk Dam); Act of Aug. 1, 1956, ch. 809, 70 Stat. 775 (Prosser Creek 
Dam, Stampede Dam, and Marble Bluff Dam); Act of Dec. 29, 1950, ch. 
1183, 64 Stat. 1124 (Sanford Dam); Act of June 5, 1944, ch. 234, 58 Stat. 270 
(Hungry Horse Dam); Act of Aug. 11, 1939, ch. 699, 53 Stat. 1414 (Sumner 
Dam). 

The following are examples of statutes in which Congress has specified 
that the “principal purposes” of the projects include, inter alia, flood con- 
trol: Act of Aug. 16, 1957, Pub. L. No. 85-152, 71 Stat. 372 (Twin Buttes 
Dam); Act of Aug. 6, 1956, ch. 981, 70 Stat. 1059 (Little Wood River Dam); 
Act of Feb. 25, 1956, ch. 71, 70 Stat. 28 (Fort Cobb Dam). Even in those 
statutes, however, Congress did not prioritize among the various “princi- 
pal purposes.” The Corps of Engineers has included all of the projects 
referenced above in its flood control regulations pursuant to 33 C.F.R. 
208.11. 

31 For that reason as well, there is no basis for thinking that the 
Court’s application of immunity in this case will cause any of the 
hypothesized harms suggested by petitioner (Br. 22) under 42 U.S.C. 
4022(a)(2)(B), 22 U.S.C. 277d-12, or 30 U.S.C. 877(f ). The absence of any 
case citations in petitioner’s brief suggests that the likelihood of such harm 
is remote. In any event, if Section 702c “is to be changed, it should be by 
Congress and not by this Court.” James, 478 U.S. at 612. 

49 

promotes inefficient government, because it denies an 
immunity for damages when multiple objectives may be 
obtained and permits immunity only when flood control is 
the primary purpose of the project. 

32 Finally, adoption of 
petitioner’s approach would not resolve the central issue in 
this case: whether the leakage alleged to have been the 
result of accreted water damage over time was caused by 
the flood control purpose or the irrigation purpose of the 
Madera Canal. 

Cases that give rise to assertions of immunity under the 
Flood Control Act of 1928 involve a diverse array of factual 
characteristics that make articulating a legal standard more 
specific than the James test a difficult task. Those include: 
the nature of the claim (property damage versus personal 
injury); the nature of the government’s alleged negligence 
(e.g., structural or design, human operational error, failure to 
warn); the relationship of specific governmental actions to 
the injury (e.g., long-term operations versus discrete 
actions); and the traceability of the injury to a particular pur- 
pose of the project. None of those distinctions alone pro- 
vides a sound basis for determining that Section 702c does or 
does not apply. On the other hand, the requirement of a 
nexus or relation between flood control and the injury that 
has been applied by the courts of appeals has yielded 
consistent results that implement Congress’s intent to create 
a broad immunity for federal flood control activities. 

As we have shown, the Madera Canal is an integral part of 
the flood control operations of the CVP’s Friant Division, in 
its routine uses to serve irrigation needs and to convey 
heavy flows in the San Joaquin River to downstream loca- 
tions. Because by regulation and historical practice a sub- 

32 For that reason as well, petitioner’s suggestion (Br. 31-33) that the 
applicability of Section 702c immunity should turn in part on whether the 
government is reimbursed for the construction costs of the project in 
question should be rejected. 

50 

stantial quantity of flood water has been released into the 
Madera Canal, as a matter of law the United States is 
entitled to immunity from petitioner’s suit. 

CONCLUSION 

The judgment of the court of appeals should be affirmed. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

DAVID W. OGDEN 

Assistant Attorney General 

BARBARA D. UNDERWOOD 

Deputy Solicitor General 

DAVID C. FREDERICK 

Assistant to the Solicitor 

General 

ROBERT S. GREENSPAN 
IRENE M. SOLET 

Attorneys 

AUGUST 2000 

APPENDIX 

33 U.S.C. 702c, provides, in pertinent part: 

No liability of any kind shall attach to or rest upon the 
United States for any damage from or by floods or flood 
waters at any place: Provided, however, That if in 
carrying out the purposes of sections 702a, 702b to 702d, 
702e to 702g, 702h, 702i, 702j, 702k, 702l, 702m, and 704 
of this title it shall be found that upon any stretch of the 
banks of the Mississippi River it is impracticable to 
construct levees, either because such construction is 
not economically justified or because such construction 
would unreasonably restrict the flood channel, and lands 
in such stretch of the river are subjected to overflow and 
damage which are not now overflowed or damaged by 
reason of the construction of levees on the opposite 
banks of the river it shall be the duty of the Secretary of 
the Army and the Chief of Engineers to institute pro- 
ceedings on behalf of the United States Government to 
acquire either the absolute ownership of the lands so 
subjected to overflow and damage or floodage rights 
over such lands. 

(1a) 

2a